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The North Star and The Ella Warley/Opinion of the Court

This case arose out of a collision off the Jersey shore, south of Sandy Hook, on the evening of the ninth of February, 1863, between two steam-ships, the Ella Warley, bound from New York to New Orleans, and the North Star, bound from Key West to New York. The former was struck about midships, and was sunk and lost; and the North Star was considerably damaged. The owners of the Ella Warley libeled the North Star, and the owners of the latter filed a cross-libel in personam against the owners of the Ella Warley. The suits were tried together, and the district court held the Ella Warley alone in fault, and rendered a decree accordingly. The circuit court held both vessels in fault, and rendered a decree in favor of the owners of the Ella Warley for so much of their damage as exceeded one-half of the aggregate damage sustained by both vessels. This was the proper decree to make if the conclusion reached, as to both vessels being in fault, was correct, unless the question arising on the limited-liability act, hereafter discussed, required a different decree. Each vessel being liable for half the damage done to both, if one suffered more than the other, the difference should be equally divided, and the one which suffered least should be decreed to pay one-half of such difference to the one which suffered most, so as to equalize the burden.

Since both of the courts below held the Ella Warley to be in fault, we would not disturb this decision without preponderating evidence to the contrary; and such evidence we do not find. On the contrary, we think that the whole evidence taken together sustains the conclusions reached.

The vessels were approaching each other in contrary directions, nearly head on, one going down the coast, the other coming up, and saw each other's mast-head lights when eight or ten miles apart. The Ella Warley, instead of porting her helm according to the rule, starboarded it in order to pass outside. This was evidently the first cause of the disaster; for, as the North Star obeyed the rule, it brought the vessels directly together. It is also obvious that the persons in charge of the Ella Warley did not keep a sufficient lookout, for they allege that they only saw the green light of the North Star until the instant before the collision; while it is demonstrable, both from the diagram produced on the part of the Ella Warley, and from the courses which the two vessels must have pursued, that after they were near enough to discern their respective side lights, the red light of the North Star was exposed to the view of the Ella Warley during the entire approach, and must have been seen by her men if they had exercised the least diligence. One of the grounds of complaint against the North Star is that her lights were not properly screened, and could be seen across her bow. This only makes it the more certain that, from the relative position of the vessels, her red light must have been visible. It is impossible that it was hidden from view up to the time immediately preceding the collision.

As to the question whether the North Star was also in fault we agree with the circuit court that she was. The rules of navigation in force at the time required that the side lights of steamers navigating the sea, bays, etc., should be fitted with in-board screens of at least six feet in length, (clear of the lantern,) to prevent them from being seen across the bow, and to be placed in a fore-and-aft line with the inner edge of the side lights, and in contact therewith. 1 Pars. M. Law, 679, (Ed. 1859.) In flat defiance of this rule the screens of the North Star did not project two inches forward of the bull's-eye of the lights, so that the lights could be seen two or three points across the bow. This was undoubtedly one reason why the green light of the North Star caught the eye of the mate and others on board of the Ella Warley so readily as it did, and, indeed, goes to some extent to mitigate their negligence in not discerning the red light. This was clearly a fault on the part of the North Star, and one that probably contributed to the accident. We think, therefore, that both parties were in fault.

The counsel for the owners of the Ella Warley now, for the first time, raise a question upon the statute limiting the liability of the ship-owners. They contend that, as the Ella Warley was a total loss, the owners are not liable to the owners of the North Star at all, not even to have the balance of damage struck between the two vessels; but that the half of their damage must be paid in full, without any deduction for the half of the damage sustained by the North Star. This proposition is so startling that the reasoning employed to support it should be scrutinized with some care before yielding to its force.

The rule of admiralty in collision cases, as we understand it, is that, where both vessels are in fault, they must bear the damage in equal parts, the one suffering least being decreed to pay to the other the amount necessary to make them equal, which amount, of course, is one-half of the difference between the respective losses sustained. When this resulting liability of one party to the other has been ascertained, then, and not before, would seem to be the proper time to apply the rule of limited responsibility, if the party decreed to pay is entitled to it. It will enable him to avoid payment pro tanto of the balance found against him. In this case the duty of payment fell upon the North Star, the owners of which have not set up any claim to a limit of responsibility. This, as it seems to us, ends the matter. There is no room for the operation of the rule.

The contrary view is based on the idea that, theoretically, (supposing both vessels in fault,) the owners of the one are liable to the owners of the other for one-half of the damage sustained by the latter; and, vice versa, that the owners of thelatter are liable to those of the latter are liable to those damage sustained by her. This, it seems to us, is not a true account of the legal relations of the parties. It is never so expressed in the books on maritime law. On the contrary, the almost invariable mode of statement is that the joint damage is equally divided between the parties; or (as in some authorities) it is spoken of as a case of average. Thus, Lord STOWELL says:

'A misfortune of this kind may arise where both parties are     to blame, where there has been want of due diligence or of      skill on both sides. In such a case the rule of law is that     the loss must be apportioned between them, as having been      occasioned by the fault of both of them.' The Woodrop Sims, 2      Dod. 83.

This statement of the law was adopted in the text of Abbott on Shipping, p. 3, c. 1, § 2. It is also adopted by Mr. Bell, in his Commentaries on the Laws of Scotland, (vol. 1, pp. 580, 581,) who remarks:

'By the maritime law this is a case of average loss or     contribution, in which both ships are to be taken into the      reckoning, so as to divide the loss.'

It is also adopted in the later text-writers. See McLach. Merch. Shipp. 274. In Hopkins on Average, 189, it is stated thus:

'If, as the result of cross-actions in admiralty, both     vessels be found in fault, the rule of the court is to add      the damages, losses, and costs of the two ships together, and      to divide the joint sum in moieties and decree each vessel to      bear an equal portion.'

If we go back to the text of the law, in the rules of Oleron, followed in the laws of Wisbuy and other laws, we find it expressed in substantially the same manner. The case is supposed of a ship coming into port negligently managed, and striking a vessel at anchor in an improper position, so that both are in fault and both are damaged. The rule says:

'The damage ought to be appraised and divided half and half     between the two ships, and the wines that are in the two      ships ought to divide the damage age between the merchants.'      1 Pardessus, Collection de lois Maritime, 334; Cleirac, Us et      Contume de la Mer, 55; Sea Laws, 141; 1 Pet. Adm. App. xxiii.

'If the damage is done reciprocally, such damage is     apportioned in common between the parties.'

The French Ordinance of 1681 expresses the rule in exactly the same way:

'The damage shall be paid equally by the ships which have     caused it and suffered it.' Valin, lib. 3, tit. 7, art. 10.

'Whenever damage by collision is adjudged common average     between the two ships, the decree is that the costs of suit      and the appraisement of the damage shall be equally borne in      common, to effect which they are made into one mass with a      calculation of the average.'

Emerigon, who had great experience as an admiralty lawyer and judge, says, upon the same article:

'The damages sustained by both ships are appraised and made     into one mass, which is equally divided.' Assurances, c. 12,      sec. 14, § 3.

Boulay-Paty, commenting on the Code de Commerce, art. 407, which relates to the same subject, says:

'We conclude, then, that after due regard is had to the character of the damaged parts of each ship, the injury and     damage which they have sustained and the appraisal thereof,      being added together in a single mass, must be divided so as      to be equally borne by each of the ships which have been      struck.' Droit Commercial, vol. 4, p. 497.

In this country the same mode of expressing the law has always prevailed. The first case in which the question came before this court was that of The Catharine v. Dickinson, 17 How. 170, in which both vessels were adjudged to have been in fault; and the court, by Justice NELSON, adopted the admiralty rule as it had been administered in the district and circuit courts. Justice NELSON said: 'The question, we believe, has never until now come distinctly before this court for decision. The rule that prevails in the district and circuit courts, we understand, has been to divide the loss;' and he cites the case of The Rival, decided by Judge SPRAGUE, (Spr. 160,) and the leading English decisions on the subject. Subsequent decisions have invariably used the same language. 21 How. 184; 9 Wall. 513; 11 Wall. 164; S.C.. 18 Wall. 51, 56; 92 U.S. 695; 93 U.S. 313; 3 Kent, 231.

These authorities conclusively show that, according to the general maritime law, in cases of collision occurring by the fault of both parties, the entire damage to both ships is added together in one common mass and equally divided between them, and thereupon arises a liability of one party to pay to the other such sum as is necessary to equalize the burden. This is the rule of mutual liability between the parties. But when claims are prosecuted judicially the courts regard the pleadings, and the English courts are very strict in holding the parties to their allegations, and in refusing relief unless it is sought in a direct mode. If only one party sues and the other merely defends the suit, and upon the proofs it appears that both parties are in fault, the court declares this fact in the decree, and decrees to the libelant one-half of the damage sustained by him; the damage sustained by the respondent not being regarded as the subject of investigation determinable in that suit. This technical result of the form of proceeding and pleadings, in which the respondent suffers himself to be placed in a position of disadvantage, has led to the erroneous notion that each party is entitled by the law to be paid one-half of his damage by the other party, and that each claim is independent of the other. But where both parties file libels, as they are entitled to do, although to conform to the pleadings a decree may be rendered in each suit in favor of the libelant for one-half of his damage, even the English courts will not allow two executions, but will grant a monition in favor of that party who has sustained most damage for the balance necessary to make the division of damages equal. This is an awkward way of arriving at the result contemplated by the law. It may have its conveniences in some cases, as where the innocent owners of cargo are the libelants, for they are not responsible for any part of the loss. But as between the ship-owners themselves it involves an apparatus of two distinct suits to get at one result, when one suit, or two suits consolidated together, would be in every respect more convenient. The difficulty is obviated in England, to a certain extent, where each party has brought suit, by directing, with the assent of the parties, that the proceedings shall be conducted together so as to save the expense of a double investigation.

To show the difficulties under which the English admiralty courts have labored, in seeking to do complete justice, one or two cases may be referred to. In the case of The Seringapatam, reported in 2 W. Rob. 506, and 3 W. Rob. 38, a collision had occurred between that ship and the Danish ship Harriet, by which the latter was sunk with a loss of ship and cargo. A libel was filed by the owners of the Harriet and cargo against the Seringapatam, and an appearance was entered. A cross-libel was also filed, but as the owners of the Harriet resided abroad, no process could be served, and no appearance was entered, and the suit was discontinued. A decree was made in the original suit declaring that both parties were in fault, and that the damage should be equally borne by them, and condemning the respondents to pay a moiety of the damages suffered by the Harriet and her cargo. After an appeal and affirmance of the decree, motion was made in behalf of the owners of the Seringapatam praying that the court, in estimating the compensation due to the owners of the Harriet, would direct the register to ascertain and deduct therefrom a moiety of the damage sustained by the Seringapatam. But it was objected that the owners of the latter were only defendants, and no prayer for compensation was made in their behalf, and none could be allowed. Dr. LUSHINGTON said:

'If the two actions had been going on according to the     ordinary usage and practice in these cases, the sentence of      the court would have attached to both vessels, and the court      would have decreed a joint reference to ascertain the amount      of the total damage, and would have directed the said damage,      with the costs, to be equally divided between the respective      owners. The cross-action, however, having been abandoned, the     court made its decree for a moiety of the damage done to the      Harriet, and this decree has been affirmed by the privy      counsel.'

Then, after showing that the appeal and affirmance would not stand in the way of doing justice, he adds:

'I do not exactly see how I can deal with the second suit,     which has been abandoned, as an existing suit, and say to the      owners of the Sering apatam, you shall have the benefit of a      decree which, in point of fact, has never been pronounced in      their favor. The difficulty, it is true, is created by the     peculiar circumstances of the case itself, and if I could      have foreseen the result of the proceedings before the      Trinity Masters, I would certainly have made some      arrangements at the time to meet the circumstances of the      case, for I never will be induced, unless compelled by law,      to further the commission of an injustice either party upon a      mere matter of form. Taking all the circumstances of the case     into my consideration, the course I shall adopt is this: I      shall not depart from my original decree, but shall confine      the reference to the amount of compensation to which the      owners of the Harriet are entitled. At the same time, I shall     not permit the full amount of that compensation to be paid to      them unless they submit to the deduction of a moiety of the      damages sustained by the owners of the Seringapatam.'

In the case of The Calypso, Swab. 28, a collision had occurred with the Equivalent. The owners of the Calypso brought suit, and the decree was that both parties were in fault, and pronounced for half the Calypso's damage. Then the owners of the Equivalent sued, and the owners of the Calypso presented a petition that the suit should be dismissed because of the former adjudication. Dr. LUSHINGTON declined to dismiss, but without deciding whether the matter might not be set up as a defense, and intimated that it was not commendable to wait the result of one action before bringing a cross-action, and he refused costs. He said:

'The usual practice is that when one vessel has been     proceeded against in a cause of collision, and the owners of      the other think they have any chance of obtaining a decree in      their favor to enter a cross-action, and it is generally      agreed between the practitioners that the decision in the one      case shall govern the decision in the other. I am not aware     that it is in the power of the court, if the proctors were      not consenting to such an agreement, to say that both actions      should be governed by the one as a matter of right.'

These cases serve to show how, by reason of the technicalities of procedure, and the clumsiness of the process used for attaining the correct result, the original maritime rule, though in itself simple and easy of application, became involved and obscured.

Thus, where the merchant shipping act declared that if certain rules of navigation were infringed the owner should not recover for any damage sustained in a collision, it was held that he should not have the benefit of average, (The Aurora, Lush. Adm. 327,) and where the same act exempted the owner from responsibility for the acts of a compulsory pilot, it was held that he should not be subject to average, though entitled to recover half of his own loss from the other vessel in fault, (The Montreal, 17 Jurist, 538; S.C.. 24 Eng. L. & Eq. R. 580.) These decisions were contrary to the maritime rule, though perhaps, in the former case, the words of the statute required the construction given to it. See 1 Pars. Shipp. 596; 2 Pars. Shipp. 115-117.

A like departure from the maritime rule, we think, was made in the late case of Chapman v. ''Netherlands Steam Nav. Co.'' L. R. 4 Prob. Div. 157, which is much relied on by the counsel of the Ella Warley. In that case a collision occurred between the Savernake, owned by Chapman & Co., and the Vesuvius, owned by the Netherlands Company, by which the Vesuvius was sunk, with a total loss of ship and cargo, valued at £28,000, and the Savernake was damaged £4,000. The owners of the Vesuvius brought suit, and the owners of the Savernake put in a counter-claim, the substitute created by the late judicature act for the old cross-action. Both parties being declared in fault, a reference was made to the register to ascertain the damages of the various parties. At this point, the owners of the Savernake filed a bill in equity to obtain the benefit of limited liability, proffering £5,064 as the value of their ship at £8 per ton; and obtained a decree for paying into court that fund with interest. The question then arose as to the disposition of this fund, and for what amount each party in interest should be permitted to prove for dividend. Sir GEORGE JESSEL, master of the rolls, decided that the owners of the cargo of the Vesuvius and her master and crew were entitled to prove for half of their loss. As to the owners of the ship his decision was that the proper amount to be proved was the half of her value, less the half of the loss sustained by the Savernake, according to the maritime rule as before explained. The owners of the Savernake appealed, and contended that their claim for a moiety of damage sustained by them, (which was £2,000,) should stand good against the owners of the Vesuvius absolutely, and should not be deducted from the moiety of loss sustained by the Vesuvius, but that the owners of the latter should prove against the fund for their entire moiety of loss without deduction. This would have the effect of enabling them to set off the £2,000 against any dividend which might be awarded to the owners of the Vesuvius, and would enable them to get back so much of the amount paid into court. The master of the rolls had considered this a preposterous claim, and contrary to the meaning of hte maritime rule. But the majority of the Lords Justices, BAGALLAY and COTTON, against the opinion of Lord Justice BRETT, reversed the decision, and decreed in the manner contended for by the appellants. We have carefully considered the reasons given by the various judges, and are unable to avoid the conclusion that the master of the rolls and Lord Justice BRETT took the proper view of the subject.

In this country the courts of the United States are not subject to the same disabilities which embarrass the proceedings of the English courts. By the act of congress of July 22, 1813, (Rev. St. § 921,) it is enacted that 'where causes of a like nature, or relative to the same question, are pending before a court of the United States, the court may make such orders and rules concerning proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so.' The power of consolidation here given enables the district courts sitting in admiralty to provide for cases of the kind under consideration in a manner adapted to the ends of justice and the exact rights of the parties. We understand that it is freely exercised by them. At all events, it clothes them with the necessary authority, in cases of collision, to combine the suits arising thereon into a single proceeding, and where both parties are found to be in fault, to make a single decree, (as was done in this case,) in accordance with their rights and obligations as resulting from the law. And even where no cross-libel is filed, if the respondents in their answer allege damage sustained by them in the collision, and charge fault against the vessel of the libelants, and pray a set-off or recoupment, in case they should themselves be held to be in fault, we see no good reason why they should not have the benefit of average afforded by the law, at least to the extent of the claim of the libelants. This would be more in accord with the liberal spirit in which the rules of pleading are administered in this country, than a rigid adherence to the English practice would admit of.

In the case of The Sapphire, 18 Wall. 56, Mr. Justice STRONG, delivering the opinion of this court, observed:

'We do not say that a cross-libel is always necessary in a     case of collision, in order to enable claimants of an      offending vessel to set off or recoup the damages sustained      by such vessels, if both be found in fault. It may, however,     well be questioned whether it ought not to appear in the      answer that there were such damages.'

As it nowhere appeared by the STRONG, however, as to the non-necessity of a cross-libel is a very STRONG, however, as to the non-necessity of a cross-libel is a very pregnant one.

But waiving further discussion as to the proper or admissible as to the proper or admissible mode of pleading,-for the respondents in this case did file a cross-libel,-it is sufficient to say that the forms and modes of proceeding in the courts of the United States are not such as to interpose any serious difficulties in the way of carrying out the simple rule of the maritime law with regard to averaging the damages occasioned by a collision where both vessels are in fault. And if there were, it would not alter the relative rights of the parties as settled by that law. We have referred to the embarrassments caused by the technical rules of procedure in the English courts for the purpose of accounting for their apparent departure from the maritime rule of liability in some cases.

In conclusion it is proper to remark that the British statutes on the subject of limited responsibility of ship-owners, as well as those which regulate the forms of proceeding, are different from ours. The rule of limitation as administered by us is much more liberal to the shipowners than the English rule. We only make them liable, when free from personal fault, for the value of their ship after the collision, so that if the ship is lost their further liability is extinguished; while in England it is maintained to the extent of £8 per ton, and in some cases £15 per ton, of their ship's measurement. To apply to our law the rule of construction which was given by the Lords Justices in the case of Chapman v. Netherlands Co., would often result, and would in this case result, in positive injustice. It would enable the owners of the Ella Warley to obtain full compensation for a moiety of their loss, while the owners of the North Star would have to sustain both their own entire loss and half of that of the owners of the Ella Warley, while both vessels were alike to blame for the collision. A rule which leads to such results cannot be a sound one.

Applying to the present case the maritime rule as we understand it, it being ascertained that both parties were in fault, the damage done to both vessels should have been added together in one mass or sum and equally divided, and a decree should have been pronounced in favor of the owners of the Ella Warley (which suffered most) against those of the North Star (which suffered least) for half the difference between the amounts of their respective losses; for the Ella Warley by her loss discharged her portion of the common burden, and so much more as the amount that would thus be decreed in her favor. Her delivery to the waves was tantamount to her surrender into court in case she had survived. It extinguished the personal liability of her owners by the mere operation of the maritime rule itself. As there was no decree against her owners for the payment of money, there was no room for the application in their favor of the statute of limited liability. The owners of the North Star do not claim the benefit of the law, and probably could not, because the fault of that ship lay in her original construction, and was attributable to the owners themselves. So that, in fact, the question of limited liability had no application to the case.

At the same time it is proper to say that it is at least questionable whether the benefit of the statute can be accorded to any ship-owner or owners, in the absence of any claim therefor in the pleadings. Such claim must always be based on the collateral fact that the loss or damage was 'occasioned or incurred without the privity or knowledge of such owner or owners,' (Revised St. § 4283,) and it would seem that an allegation of that fact should somewhere appear in the pleadings. As no such allegation is made, and no claim of the kind is set up by the owners of the Ella Warley, it would be exercising a greater latitude of indulgence to allow it to be set up now, than has ever been asked of this court before. Nevertheless, as the time within which a party may be allowed to institute supplemental proceedings for obtaining the benefit of the law has never been precisely defined, we have deemed it best to decide the case upon the rights of the parties on the merits, in order to save further litigation and expense.

Since, therefore, the decree of the circuit court was made in precise conformity with the views which we have expressed, it must be affirmed, with interest from its date; and inasmuch as both parties have appealed from said decree upon grounds which have not been sustained, each party should pay their own costs on this appeal; and the cause must be remitted to the circuit court for such further proceedings as may be in accordance with law.


text: Talk:The North Star and The Ella Warley/Opinion of the Court

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Phoenix Mutual Life Insurance v. Doster

H. E. Barnard, for plaintiff in error.

Frank Doster and John W. Linn, for defendants in error.

HARLAN, J.

title: Phoenix Mutual Life Insurance v. Doster


text: Talk:Phoenix Mutual Life Insurance v. Doster


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Phoenix Mutual Life Insurance v. Doster/Opinion of the Court

This is a writ of error from a judgment for the amount of a policy of insurance upon the life of Jackson Riddle, issued on the twentieth day of September, 1871, by the Phoenix Mutual Life Insurance Company of Hartford, Connecticut.

The policy purports to have been issued in consideration as well of the representations made in the application for insurance, as of the payment by the wife and children of the insured (the payees named in the policy) of the sum of $215, and the annual payment of a like amount on or before the twentieth day of September in every year during its continuance. It contains a stipulation that if the premium be not paid at the office of the company in Hartford, or to some agent of the company producing a receipt signed by the president or secretary, on or before the day of its maturity, then, in every such case, the company shall not be liable for any part of the sum insured, and the policy shall cease and determine, all previous payments being forfeited to the company. The policy is upon the half-note plan, and it is part of the contract that the dividends set apart to the insured be applied in the discharge, pro tanto, of annual premiums. The secretary of the company, in his evidence, states that under the half-note plan the insured is permitted to discharge one-half of the first four premiums by notes, (the interest thereon to be paid in advance,) and upon the fifth and subsequent payments to have his dividends, if any, applied in reduction of the premium. It was in proof that prior to the maturity of the respective premiums, payable on the twentieth days of September, 1872, 1873, and 1874, the company's general agent sent to the insured, at his residence in Monticello, Illinois, printed notices showing when the premium became due, the amount of cash to be paid, the interest on the notes given under the half-note plan, and the amount for which an additional note under that plan was required. Prior to the twentieth of September, 1875, when the fifth annual premium was due,-the notice to the insured stated the amount of dividends to be applied in reduction of that premium, the interest to be paid in advance upon the notes previously executed, and the sum to be paid in cash.

The amounts due in the years 1872, 1873, 1874, and 1875 were paid, but not until the expiration of several, in some instances 10 or more, days after the time fixed by the policy. They were received in each instance, so far as the record discloses, without objection upon the part of the company or its agents.

On the sixth day of October, 1876, the insured lost his life in a railroad collision, leaving unpaid the premium due on the twentieth day of September of that year. His residence and post-office, for more than a year prior to his death, has been at Oxford, Indiana. Of his removal to that place the general agent of the company at Chicago was distinctly informed, as the evidence tended to show, as early as October, 1875. The letter from that office acknowledging the receipt of the premium due on twentieth of September, 1875, (but not paid until about October 9th, of that year,) was addressed to the insured, at his new residence in Oxford, Indiana. On the fourth day of October, 1876,-14 days after the premium for that year was due,-there was sent from the office of the company's general agent at Chicago, addressed, by mistake, to the insured at Fowler, Indiana, a notice similar to that given in 1875. This notice, the evidence tended to show, was received from the post-office at Fowler, Indiana, (where the father never resided,) by a son of the insured, on the day the latter was killed, and a few hours only before his death. There was also proof that the insured, before leaving his home, at Oxford, Indiana, made arrangements to pay the amount required in that year as soon as the customary notice, showing the sum to be paid, was received. On the ninth day of October, 1876, the amount due was, in behalf of the payees, tendered to the company's general agent at Chicago. He declined to receive it, upon the ground that the policy lapsed by reason of the non-payment of the premium, at maturity, in the life-time of the insured.

Upon the part of the payees it is contended that the company waived strict compliance with the provision making the continuance of the policy dependent upon the payment of the annual premium on the day named therein; and that, in view of the settled course of business between the company and its agents on one side, and the insured on the other, it is estopped to rely upon the non-payment of the last premium, at the day, as working a forfeiture of the policy.

The facts and circumstances established by the testimony are sufficiently indicated in the charge of the court, to certain parts of which, to be presently examined, the company objected. It is enough to say that the testimony was ample to enable each party to go to the jury upon the substantial issues in the case. The motion, at the close of the plaintiff's evidence, for a peremptory instruction for the company was properly denied. It could not have been allowed without usurpation upon the part of the court of the functions of the jury. Where a cause fairly depends upon the effect or weight of testimony, it is one for the consideration and determination of the jury, under proper directions, as to the principles of law involved. It should never be withdrawn from them, unless the the testimony be of such a conclusive character as to compel the court, in the exercise of a sound judicial discretion, to set aside a verdict returned in opposition to it. 9 Pet. 299; 12 Pet. 5; 1 Black, 49; 14 Pet. 31; 13 Wall. 62; 93 U.S. 146.

We now proceed to an examination of those parts of the charge which were made the subject of exceptions by the company.

After saying that the policy, with the application, contained the agreement of the parties; that the clause providing for a forfeiture for non-payment of the premium at maturity, and declaring the want of authority in agents either to receive premiums, after the time fixed for their payment, or to waive forfeiture, constituted a part of the contract, binding upon both parties, unless waived or modified by the company, or by its agent thereunto authorized; also, that strict performance of the forfeiture provision could be waived by the company, either expressly or by implication, the court proceeded to lay down the rules by which the jury should be guided in determining whether there was such waiver. It said, in substance, that if the conduct of the company, in its dealings with the insured, and others similarly situated, had been such as to induce a belief on his part that so much of the contract as provides for a forfeiture, if the premium be not paid at the day, would not be enforced if payment were made within a reasonable period thereafter, the company ought not, in common justice, to be permitted to allege such forfeiture against one who acted upon that belief, and subsequently made or tendered payment; and that if the acts creating such belief were done by the agent, and were subsequently approved by the company, either expressly or by receiving and retaining the premiums, with full knowledge of the circumstances, the same consequences should follow.

The court further told the jury, in substance, that if they found from the evidence that the company were in the habit of sending renewal receipts for the premium on this policy to its local agent, at the place of residence of the insured, duly signed by the president and secretary of the company, leaving their use subject entirely to the judgment of that agent, and the latter was accustomed to receive the premiums from the insured, without objection, several days after the same became due, and to issue the receipt therefor, and the home company or the managing agents or officers had full knowledge of such practice, and received from its agent, and retained, the premiums so paid, the insured had a right to believe that the company waived a strict compliance, and they might find that there was a waiver by the company of the forfeiting clause of the policy; and if the insured, relying on such practice, within a reasonable or the usual time, paid or offered to pay the premium after the day the same was due, the policy remained in full force and effect, and the company was liable thereon, notwithstanding the insured had in the mean time died.

The objection of the company to these parts of the charge were overruled, and an exception taken. The objection would have more weight had the charge ended with these remarks, because in such a presentation of the case the court would have placed before the jury only one side of the issues to which it directed attention. But the charge is not liable to such criticism, since the court, in the same connection, instructed the jury that if the company had not authorized its local agent, to whom the renewal receipts were sent, to extend the time for payment of the premium beyond the day named in the policy, nor had habitually accepted from the insured through its agent the premiums on the policy after the same became due, with full knowledge that the same were so paid after due and the receipt issued by its agent, then that they could not find that the company had, either expressly or by implication, waived a strict compliance with the terms of the policy in reference to payment of the premiums, and the policy became forfeited according to its terms.

It seems to the court that the charge was as favorable to the company as it could have demanded. It was, as to its essential parts, in substantial harmony with recent decisions of this court. In ''Ins. Co. v. Norton'', 96 U.S. 239, we said, in reference to a policy similar to the one here in suit, that the company was not bound to act upon the declaration that its agents had no power to make agreements or waive forfeitures, but might at any time, at its option, give them such power; that the declaration was tantamount to a notice to the insured, which the company could waive and disregard at pleasure:

'In either case, [said the court,] both with regard to the     forfeiture and to the powers of its agents, a waiver of the      stipulation or notice would not be repugnant to the written agreement, because it would only be the exercise of an option      which the agreement left in it. And whether it did exercise     such option or not, was a fact provable by parol evidence, as      well as by writing, for the obvious reason that it could be      done without writing.'

In the same case it was said that, although in life insurance time of payment was material, and could not be extended against the assent of the company, where such assent was given, the court should be liberal in construing the transaction in favor of avoiding a forfeiture. And in ''Ins. Co. v. Eggleston'', 96 U.S. 577, it was said that the courts are always prompt to seize hold of any dircumstances that indicate an election to waive a forfeiture, or an agreement to do so on which the party has relied and acted. Consequently, said the court, speaking by Mr. Justice BRADLEY:

'Any agreement, declaration, or course of action, on the part     of an insurance company, which leads a party insured honestly      to believe that by conformingthereto a forfeiture of his      policy will not be incurred, followed by due conformity on      his part, will and ought to estop the company from insisting      upon the forfeiture, though it might be claimed under the      express letter of the contract. The company is thereby     estopped from enforcing the forfeiture. The representations,     declaration, or acts of an agent, contrary to the terms of      the policy, of course, will not be sufficient, unless      sanctioned by the company itself. ''Ins. Co. v. Mowry'', 96 U.S.     544. But when the latter has, by its course of action,     ratified such declarations, representations, or acts, the      case is very different.'

These authorities abundantly sustain the rulings in this case to which reference has been made.

The court below then passed to an examination of the remaining ground relied on as to excusing the non-payment of the last premium on the day it fell due, viz., the failure of the company to give the insured seasonable notice of the amount of dividends to be applied in reduction of the premium. After stating that by the terms of the policy the premiums could be paid either at the home office or to an agent of the company, producing the proper receipt, and that by the terms of the application, which was the basis of the contract of insurance, the annual dividends due the insured could be applied in discharge of premiums, the court instructed the jury that if they found from the evidence that it had been the invariable custom of the company to transmit to the insured, by mail or by its local agent, a statement of the amount of the premium due, after deducting the dividend, with a notice of the time when, the place where, and the person to whom, the premium could be paid, then the insured had good reason to expect and rely on such statement, and notice being sent to him; and that if the insurance company, by its managing agent, had notice of the post-office address of the insured before the usual time of sending out notice, but failed and neglected to transmit such statement and notice to the insured at his post-office address until the fourth day of October, and the same did not reach him, or the payees in the policy, until October 6th, and that the insured or payees were ready and waiting to pay said premium when the notice and statement should be received, and by reason of such failure of the company to send the notice and statement, and by reason of that alone, the premium due in September, 1876, was not promptly paid, and that in a reasonable time thereafter, to-wit, on Monday, the ninth day of October, 1876, the payees tendered the company, at Chicago, the full amount of the premium due, then the policy did not lapse or become forfeited, notwithstanding the premium was not paid on the day named in the policy, and in the life-time of the insured. To that part of the charge the company excepted. In the same immediate connection, the court below, it may be observed, further instructed the jury that if it had not been the uniform custom of the company to send the insured such notice or statement at or about the time the premium became due, or if the company or managing agent had not been notified of the change of the post-office address of the insured until about the fourth day of October, or that the company had in reality sent the notice, by mail or otherwise, at a prior date, properly addressed to the insured, then it was not the fault of the company that the insured was not notified, and the want of such notice would not excuse him from making payment at the day, and the policy would consequently become forfeited.

We are of opinion that these propositions are substantially correct. Nor do we perceive that the rulings of the court below are in conflict with our decision in Thompson v. ''Ins. Co.'' 104 U.S. 258. In that case it appeared that the insured, for a part of an annual premium, had given a note containing the special provision that in the event of the non-payment of the note at maturity the policy should be void. The note was not paid at maturity, nor was payment ever tendered while the insured was alive, nor at any time after his death, by or in behalf of the payees in the policy. To pleas setting up these facts replications were filed, in which it was attempted to excuse the failure to make due tender of the amount of the note, upon the ground that it was the usage and custom of the company, practiced with the insured and others, as well before as after the making of the note, not to demand punctual payment at the day, but to give 30 days of grace; further, that it had been its uniform custom and usage, in advance of the maturity of notes, to give notice of the day of payment, whereas no such notice was given to Thompson, and thereby, it was alleged, he was put off his guard and misled as to the time of payment. It was held that the failure to tender the amount due, within the period named in the replication, was, in every view, fatal to the entire case set up by the payees in the policy. 'A valid excuse for not paying promptly on the day is,' said the court, 'a different thing from an excuse for not paying at all.' Touching the alleged failure of the company, in conformity with its uniform practice, to give notice of the day of payment, it was said that the insured knew, or was bound to know, when his premiums became due, and that the company was under no obligation to give him notice; nor did it assume any responsibility by giving notice on previous occasions.

The present case has features which plainly distinguish it from the Thompson Case. In the former there was a tender of the premium within a few days after the death of the insured, and as soon as the payees ascertained the sum required to be paid. In the latter, the amount to be paid was fixed. It was not liable to be reduced on account of dividends or for any other reason, and the insured, therefore, knew the exact amount to be paid in order to prevent a forfeiture of the policy. Now, although the policy issued upon Riddle's life required payment annually of a specific sum as a premium, that stipulation must be construed in connection with the agreement set out in the application, that the premium might be discharged pro tanto by such dividends as were allowed to the insured from time to time. Whether the company, in any particular year, declared dividends, and what amount was available in reduction of the premium, were facts known, in the first instance, only to the company, which had full control of the matter of dividends. It certainly was not contemplated that the insured should every year make application, either at the home office, or at the office of its general agent in Chicago, in order to ascertain the amount of dividends. The understanding between the parties upon this subject is, in part, shown by the practice of the company. Independently of that circumstance, and waiving any determination of the question whether the forfeiture was not absolutely waived by the act of the general agent, in sending notice to the insured after the day fixed for the payment of the premium due September 20, 1876, it was, we think, the company's duty, under any fair interpretation of its contract, having received information as to the post-office of the insured, to give seasonable notice of the amount of dividends, and thereby inform him as to the cash to be paid in order to keep alive the policy. It did, as we have seen, give such notice in 1875, and received payment of the amount due after the date fixed in the policy. Within a reasonable time after the notice for 1876 came, in due course of mail, to the hands of one of the payees, a tender of the amount was made to the general agent at Chicago. No such features were disclosed in the Thompson Case, and they are, as we think, sufficient not only to distinguish the present case from that one, but to authorize the instructions of which the company complains.

The assignments of error bring to our attention numerous exceptions taken by the company to the admission of evidence, and to the refusal to give instructions asked in its behalf. We deem it unnecessary to consider them in detail. So far as they affect the substantial rights of the parties they are disposed of by what has been said touching the charge of the court upon the essential questions in the case.

The judgment must, therefore, be affirmed. It is so ordered.


text: Talk:Phoenix Mutual Life Insurance v. Doster/Opinion of the Court


text:
Gosling v. Roberts

[Statement of Case from pages 38-40 intentionally omitted]

Mitchell & Holmes, for appellant.

William Hubbell Fisher, for appellee.

BLATCHFORD, J.

title: Gosling v. Roberts


text: The Babyhood of Wild Beasts/Foreword

title: The Babyhood of Wild Beasts/Foreword


text: Talk:Gosling v. Roberts

title: Talk:Gosling v. Roberts


text:
Gosling v. Roberts/Opinion of the Court

In this case the plaintiff appeals from a decree dismissing his bill of complaint. The suit is brought for the infringement of reissued letters patent No. 5,644, granted to John W. Gosling, the appellant, November 4, 1873, for an 'improvement in step-covers and wheel-fenders for carriages,' the original patent having been granted to him February 26, 1867, and the reissue applied for June 24, 1873. As a material question in the case arises on the difference between the specifications and claims of the original and the reissued patents, they are subjoined in parallel columns, the portions in each which are not found in the other being in italics:

ORIGINAL.

'This invention relates to a cheap and simple device for     preventing the accumulation of mud and dust on the steps of      carriages, etc.; and also for guarding the clothes of the      rider from coming in contact with the wheels on entering or      leaving the vehicle.

'In the accompanying drawings, figure 1 shows the position of     my fender when the carriage door is open, and figure 2      represents it when the door is closed. A represents the body     of a carriage, B the rear wheel, C the door, and D the step;      E is a yielding plate, which may be made of sheet steel, or      other suitable material, and the upper end of said plate is      hinged or otherwise secured to the door, C, whilst its lower      end is connected to a bar, H, having an eye, h, which engages      with a suitable aperture in the flange, d, of the step. This     provision of the perforated flange, d, and eye, h, enables      the plate, E, to turn in either direction as the door, C, is      opened or closed. The flexibility of the plate, E, enables it     to bend up in the act of opening or closing the door, (see      dotted lines in figure 1,) and its elasticity enables it to      hold the door firmly in either closed or wide-open position. When the door is shut, the plate, E, closes up over the step,     D, and this prevents the wheel from throwing dirt upon said      step, as clearly shown in figure 2; but, as soon as the door      is opened, the plate, E, turns on the pivot device, d, h, at      its lower end, thus uncovering the step and serving as a      fender to prevent the occupant's clothes from coming in      contact with the hind wheel of the carriage, as represented      in figure 1. The yielding plate, E, acts as a spring to hold     the door either open or shut, and also prevents said door      from striking against the wheel, when opened. The said plate,     E, may be covered with leather or painted, or may consist      wholly of leather.

'I have selected for illustration the preferred form of my     invention, but reserve the right to vary the same, it being      susceptible of various modifications. For example, instead of     being pivoted to the step, D, the lower end of the plate, E,      may be hinged or otherwise coupled to a frame projecting from      the carriage body and passing under the step. In some cases,     for example, when the distance from the wheel to the body is      short, I provide slots on both step and fender, or one of      them, to partially or wholly relieve the plate of the flexion      incident to opening or closing the door.

'I claim herein as new and of my invention a combined     step-cover and wheel-fender for carriages, consisting of the      flexible plate, E, whose upper end is attached to the      carriage door, and whose lower end is connected, d, h, to the      step or other fixed object, the whole being arranged to      operate substantially as herein described and for the purpose      set forth.' REISSUE.

'My invention consists of a cheap and simple device for     preventing the accumulation of mud and dust on the steps of      carriages, etc.; and also for guarding the clothes of the      rider from coming in contact with the wheels on entering or      leaving the vehicle.

'In the accompanying drawings, figure 1 shows the position of     my fender when the carriage door is open; figure 2 represents      it when the door is closed. A represents the body of the     carriage, B the rear wheel, C the door, and D the step; E is      a plate, which may be made of sheet metal or other suitable      material, and the upper end of said plate is hinged or      otherwise secured to the door, C. The lower end of the      combined cover and fender, E, may be connected to the bar, H,      having an eye, h, which engages with a suitable aperture in      the flange, d, of the step. This provision of the perforated     flange, d, and eye, h, by reason of its loose character,      permits the cover and fender, E, to turn freely in either      direction as the door, C, is opened or closed. The cover and     fender, E, I prefer to make of flexible material, so that it      may bend in the act of opening and closing the door, (see      dotted lines in figure 1,) and its elasticity enables it to      hold the door firmly in either the closed or wide-open      position, when the cover and fender are connected, as shown,      to the step, D. When the door, C, is shut, the plate, E,      closes up over the step, D, and prevents the wheel from      throwing dirt over the step, as clearly shown in figure 2;      but as soon as the door is opened, the cover and fender, E,      being attached to the door, C, is, of course, carried with      the door, and thus the step is uncovered, and the plate, E,      then occupies such a position as to enable it to serve as a      fender, to prevent the rider's clothes, on entering or      leaving the carriage, from coming in contact with the hind      wheel of the carriage, as represented in figure 1. The said     plate, E, may be covered with leather, or painted, or may      consist wholly of leather.

'I have selected for illustration the preferred form of my     invention, but reserve the right to vary the same, it being      susceptible of being made to assume various forms and      modifications. For example, instead of being pivoted to the     step, D, the lower end of the plate, E, may be hinged or      otherewise coupled to a frame projecting from the carriage      body and passing under the step. In some cases, when the     distance from the wheel to the body is short, I provide slots      on both step and fender, or one of them, to partially or wholly      relieve the plate of the flexion incident to opening or      closing the door.

'The important feature of my invention is the plate, E,     attached to the door of the carriage, and operating, by      reason of such attachment, as a step-cover when the door is      closed, and as a wheel-fender when the door is open.

'I claim: 1. In combination with the step, D, and the door,     C, the plate, E, attached to the door, to operate as a      step-cover when the door is closed, and a wheel-fender when      the door is open, substantially as and for the purpose      specified.

'2. A combined step-cover and wheel-fender for carriages,     consisting of the flexible plate, E, the upper end of which      is attached to the carriage door, and the lower end to the      step, all being combined to operate as a step-cover,      wheel-fender, and a spring connection to retain the door in      the opened and closed positions, all substantially as set      forth.'

Attention is at once arrested by certain marked differences between the two specifications. The drawings are alike. In the original specification the plate, E, is described as a yielding plate, while in the reissue it is merely a plate. In the original it is said that the lower end of the plate, E, is connected to the step through a bar with an eye in it which engages with an aperture in a flange on the step. In the reissue it is said that the lower end of the plate, E, may be so connected. In the original the plate, E, is described as being flexible. In the reissue the inventor says that he prefers to make it of flexible material. In the original it is said that the elasticity of the plate, E, enables it to hold the door firmly either closed or open. In the reissue it is said that such elasticity will produce that effect when the plate, E, is connected to the step as shown in the drawings. In the original the description is that, as the door is opened, the plate, E, turns on the pivot device at its lower end, which connects it to the step. This is omitted in the reissue. In the original the plate is said to act as a spring to hold the door either open or shut. This is omitted in the reissue. The object of these changes is apparent. Unless the plate, E, is connected at the bottom with the step, the door cannot be kept open or closed by the operation of elasticity in the plate, for no elasticity can be developed unless the plate is held at its bottom. In the original the holding of the plate at its bottom to the step is made the rule; in the reissue it is made the exception. In the original the plate is said to be flexible, and is not said to be ever other than flexible. In the reissue only a preference for flexibility is asserted. The object of these changes is to arrive at a claim for a plate not held at its bottom to the step. Accordingly, the reissue makes the statement, not found in the original, that the important feature of the invention is to have the plate attached to the door, and thus operate as a step-cover and a wheel-fender. The first claim of the reissue is not found in the original, and grows out of the changes above mentioned. It is a broad claim to a combination with the step and the door of the plate, E, attached to the door, to operate as a step-cover and a wheel-fender, substantially as and for the purpose specified. The second claim in the reissue is substantially the same as the single claim of the original. It combines the features of the attachment of the plate, at its bottom, to the step, and at its top, to the door, and of elasticity in the plate to hold the door open or closed.

The defendant's apparatus is a piece of material rigidly attached at its top to the door, and not attached at its bottom to the step, and operating as a combined step-cover and wheel-fender. It is plain that this construction did not infringe the claim of the original patent. It is alleged that it infringes the first claim of the reissue. The defendant obtained a patent, No. 90,584, May 25, 1869, for an 'improvement in step-covers and wheel-fenders for carriages.' It was granted more than four years before the plaintiff applied for his reissue. The defendant's apparatus is constructed substantially in accordance with the description in that patent. That apparatus has on the rear part of the door elastic guards, which come against the wheel when the door is open. The claim of the patent is to the combined arrangement.

It is shown by the evidence that prior to the plaintiff's invention a combined wheel-fender and step-cover was in use in several forms, the step-cover being attached by a vertical arm or vertical arms to the bottom of the door by a rigid connection, and swinging back by the opening of the door, the vertical arm or arms then serving as a wheel-fender. In those structures the step-cover was a horizontal plate, projecting from the lower end of the vertical arm, and overlapping and covering, when the door was shut, the horizontal step, and being parallel with it. The defendant's structure differs from these old forms solely in having the vertical arm, which is rigidly attached to the lower part of the door, so extended in width as to itself cover the step and permit the horizontal part of the step-cover to be dispensed with. There is no difference in principle or mode of operation between the old structures and the defendant's structure. The difference is merely in form and shape. The plaintiff departed, in his original patent, from the principle of the old structures, by joining his step-cover to the step and having the vertical plate yielding and flexible, so that its elasticity may keep the door open or closed. This, so far as appears, was a new invention, and he was entitled to claim it. He did claim it, and the original patent was adequate to secure it to him. The first claim of the reissue, if construed so as to cover the defendant's structure, must equally cover the old structures referred to. They had combined a step and a door and a plate attached to the door, the plate operating as a step-cover when the door was closed, and as a wheel-fender when the door was open. Extending the vertical arm in width, so as to dispense with the horizontal projection from it, and make the vertical arm wide enough to cover the step, or contracting the vertical arm in width and putting on the lower end of it a horizontal piece parallel with the step and overlying it, involved no new principle of structure or operation.

There is no suggestion in the specification of the original patent that the plate, E, is to be used, disconnected as its lower end from the step, or to be any other than a yielding plate, so arranged as to keep the door open and shut, in addition to acting as a step-cover and wheel-fender. The first claim of the reissue, if construed so as to cover the defendant's structure, is void for want of novelty, being anticipated by the old structures referred to. Moreover, if so construed, it is invalid as being for a different invention from any invention found in the original patent. And, if it is so limited as to be no broader than the claim of the original patent, there has been no infringement of it. Under any view, the decree of the court below was correct, and it is affirmed.

title: Gosling v. Roberts/Opinion of the Court


text: Talk:Gosling v. Roberts/Opinion of the Court


text:
Chicago v. Fosdick

[Syllabus on pages 47-48 intentionally omitted.]

E. Walker, for appellants.

Henry Crawford, Melville W. Fuller, and Lawrence, Campbell & Lawrence, for appellees.

MATTHEWS, J.

[Opinion of the Court on Pages 49-81 intentionally omitted]

MATTHEWS, J.

title: Chicago v. Fosdick


text: Talk:Chicago v. Fosdick

title: Talk:Chicago v. Fosdick


text:
Chicago v. Fosdick/Opinion of the Court

This appeal was heard during the last term with the appeal from the decree of foreclosure and sale in the same case, having been taken from three decrees rendered after the sale in the same suit. Huidekoper, Shannon, and Denison, the purchasers of the mortgaged property sold under the decree of foreclosure, who are appellees in this appeal, were not parties to the former appeal. All the decrees appealed from, including those now in question, were included in the order of reversal made at the former hearing; but on a petition for rehearing, it was called to the attention of the court that the transcript of the record was imperfect and incomplete, having omitted the decree confirming the sale, and that the petition for the present appeal contained a misrecital, that the decree entered April 12, 1877, was the decree 'confirming the report of the sale of the property of the defendant railroad company.' The order of reversal was, therefore, set aside as to the decrees embraced in the present appeal, and a rehearing granted. The cause, on that rehearing, has now been heard at the present term upon the whole record, as amended and perfected. From that it now appears that on February 17, 1877, the master filed his report of the sale, and the purchasers, their petition for its confirmation and for other relief, and it was on that day, on motion of the complainants' solicitors, ordered that the report and sale be confirmed, unless objections thereto should be filed on or before the Friday next following, for which day it was set for hearing. And exceptions having been in the mean time filed by one Slaughter, on February 26, 1877, the court overruled the exceptions, and, as the order reads, 'does in all things confirm the sale' to the purchasers. From this decree an appeal was prayed by Slaughter, but was not perfected or prosecuted. The petition of the purchasers, filed February 17, 1877, in which they also asked for the immediate discharge and payment of their bid, had been referred to the master, whose report subsequently filed was confirmed by the decretal order of April 12, 1877, by which he was directed, on the surrender to him of 2,328 first-mortgage Illinois Division bonds of the defendant railroad company, to execute and deliver to the purchasers a deed of the property sold, and thereupon the receiver was directed to let them into possession. On April 16, 1877, the master having reported the execution of the decree of April 12th by the delivery of the deed and the acceptance of the bonds, a further decree was entered approving and confirming the same. These are the two decrees first named in the prayer for the present appeal.

It is now contended by the appellees that these decrees are merely orders in execution of the previous decrees of the court; are, therefore, not final in the sense necessary to authorize an appeal; and that consequently, as to them the present appeal must be dismissed for want of jurisdiction.

But according to the rule sanctioned and adopted in Forgay v. Conrad, 6 How. 201, and Blossom v. Railroad Co. 1 Wall. 657, an appeal will lie from such decrees, according to the nature of their subjectmatter and the rights of the parties affected.

In the present case the decree of April 12, 1877, in effect, distributes the proceeds of the sale upon the basis of the finding and declaration in the decree for foreclosure that the principal of the bonds had become overdue, for it authorized the purchasers, to the extent of the proportion in which the bid, if treated as cash, would, when applied, extinguish the bonds held by them, to use their bonds as cash in payment of their bid. It is manifest that a substantial error, to the prejudice of one of the parties, may originate in a decree distributing the proceeds of a sale under a decree of foreclosure, and no question can be successfully raised against the right to appeal from such a decree. We cannot, therefore, dismiss the present appeal upon the ground alleged.

It is then urged by the appellees that the decrees in question, having simply followed the directions of previous decrees, originated no error, and that the only alternative is to affirm them. But the decrees involved in this appeal now under consideration are dependent upon the decree of foreclosure and sale, and the latter having been reversed, the decrees in question are left without support, and fall of themselves, by reason of that reversal, vitiated by the common error. As they are already annulled by operation of law, the subject-matter of the appeal is withdrawn, and the appeal itself must be dismissed for lack of anything on which it can operate.

The other decree involved in this appeal was entered November 19, 1877, and is a personal judgment in favor of Huidekoper, Shannon, and Denison, as trustees for themselves and other bondholders, for the deficiency arising from the excess of the amount found due by the decree of foreclosure and sale, over the credit, given of the proceeds of the sale of the mortgaged property. This deficiency is ascertained to be $1,823,573.84, and execution is awarded therefor, against the railroad company, in favor of the above-named parties.

It would seem that the reasons given for dismissing the appeal as to the other decrees apply with equal force to the one now under consideration; and such, we think, would be the rule in ordinary cases; for the existence and amount of the deficiency must usually be dependent on the findings of the decree of foreclosure and sale, as to the amount due, and the extent to which that may have been reduced by the proceeds of the sale. But the present judgment is not in the customary form. Instead of finding the amount due to the complainants in whose behalf the sale was decreed, the judgment is rendered in favor of Huidekoper, Shannon, and Denison, as trustees for the bondholders. They claim not to have been parties to the suit at the time the decree of foreclosure and sale was rendered, and as we do not consider it proper to investigate or pass upon that claim in the present proceeding, we entertain the appeal, as to the deficiency decree, and reverse it, for the error which required the reversal of the decree of foreclosure and sale.

The argument of the present appeal, on both sides, seems to have been influenced by the consideration that it possibly involved a present adjudication of the effect its determination might have upon the rights of the purchasers at the sale and the present title of the property sold. But no question of that character is involved. Whether the purchasers were parties to the litigation, either by name upon the record or in interest and by representation, so as to be affected by the error in the proceeding for which the decrees have been reversed, or whether they or their assigns are protected by the principle and policy that uphold the titles of bona fide purchasers without notice, at judicial sales, and any other that may be mooted touching the point, are questions which do not arise upon the present appeal, and are left for further consideration in case they should be presented in a subsequent stage of this or by virtue of proceedings in some other suit.

For the reasons announced, it is therefore ordered that the appeal from the decrees of April 12, 1877, and of April 16, 1877, respectively, be dismissed, upon the ground that the decrees were vacated by the reversal of the prior decree of foreclosure and sale, rendered December 5, 1876, and that the decree entered November 19, 1877, in favor of Frederick W. Huidekoper, Thomas W. Shannon, and John M. Denison, trustees, be reversed, and that the cause be remanded with directions to proceed therein as may be just and equitable.

The appellants are entitled to their costs on this appeal.

title: Chicago v. Fosdick/Opinion of the Court


text: The Babyhood of Wild Beasts/Preface

title: The Babyhood of Wild Beasts/Preface


text: Talk:Chicago v. Fosdick/Opinion of the Court


text:
Equator Mining Smelting Company v. Hall

The section of the Code of Colorado under which this motion was made reads as follows:

'Whenever judgment shall be rendered against either party     under the provisions of this chapter, it shall be lawful for      the party against whom such judgment is rendered, his heirs      or assigns, at any time before the first day of the next      succeeding term, to pay all costs recovered thereby, and,      upon application of the party against whom the same was      rendered, his heirs or assigns, the court shall vacate such      judgment and grant a new trial in such case, but neither      party shall have but one new trial in any case, as of right,      without showing cause. And after such judgment is vacated, the cause shall stand for trial the same as though     it had never been tried.'

H. M. Teller, for plaintiffs in error.

No appearance for defendants in error.

MILLER, J.

title: Equator Mining Smelting Company v. Hall


text: Talk:Equator Mining Smelting Company v. Hall


text:
Equator Mining Smelting Company v. Hall/Opinion of the Court

This is a writ of error to the circuit court for the district of Colorado.

Two questions are presented for our consideration in reviewing the action of the circuit court on this motion for a new trial. The first is whether the circuit court of the United States sitting in Colorado is to be governed by the statute of that state on this subject. At the common law, the fiction in an action of ejectment, by which Joe Doe and Richard Roe were made plaintiff and defendant, permitted any number of trials after verdict and judgment between the same parties in interest on the same question of title, by the use of other fictitious names, and other allegations of demise, entry, and ouster. The evil of this want of conclusiveness in the result of this form of action led to the interposition of a court of equity, in which, after repeated verdicts and judgments in favor of the same party and upon the same title, that court would enjoin the unsuccessful party from further disturbance of the one who had recovered these judgments. This form of action, with its inconclusive results, would be the law in Colorado for the recovery of the possession of real estate, but for the statutes of that state, of which section 254 of the Code of Civil Procedure is a part. The framers of those statutes, in abolishing the old common-law action of ejectment, with its accompanying evils, and in substituting an action between the real parties, plaintiff and defendant, found it necessary to provide a rule on the subject of new trials in actions concerning the titles of land.

A title to real estate has, under the traditions of the common law, been held, in all the states where that law prevailed, to be too important, we might almost say too sacred, to be concluded forever by the result of one action between the contesting parties. Hence, those states which, by abolishing the fictions of the action at the common law, and substituting a direct suit between the parties actually claiming under conflicting titles, which, according to the nature of this new proceeding, would end in a judgment concluding both parties, have found it necessary to provide for new trials to such extent as each state legislature has thought sound policy to require. These provisions for new trials in actions of ejectment are not the same in all the states, but it is believed that almost all of them which have abolished the common-law action have made provisions for one or more new trials as a matter of right.

We are of opinion that when an action of ejectment is tried in a circuit court of the United States according to the statutory mode of proceeding, that court is governed by the provisions concerning new trials as it is by the other provisions of the state statute. There is no reason why the federal court should disregard one of the rules by which the state legislature has guarded the transfer of the possession and title to real estate within its jurisdiction. See Miles v. Caldwell, 2 Wall. 35.

As regards the construction of the statute under consideration, which is the second question, while it is not clear that the language of the statute, that 'neither party shall have but one new trial in any case as of right without showing cause,' gives to each party at least one new trial if he demands it, we are opinion, one reflection, that such was the intention of the framers of the Code. This conclusion is fortified by a comparison of the previous enactments of the Colorado legislature with this its last expression on the subject. By the previous law it was very clear that only one new trial was demandable as a matter of right in an action of ejectment, and the change of language adopted in the Code of 1877 is indicative of intentional change in that respect-a change which can only mean that each party against whom in turn a verdict may be rendered shall have a right to one new trial. Apart from this absolute right of the parties the court may grant another trial upon reasonable grounds being shown.

These views require that the question, whether defendants are entitled to have the judgment of the court below vacated and a new trial in said cause without further showing, should be answered in the affirmative, and dispense with the necessity of examining into the assignment of errors growing out of the trial before the jury.

The judgment of the circuit court is therefore reversed, with directions to grant a new trial.


text: Talk:Equator Mining Smelting Company v. Hall/Opinion of the Court


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American Cotton-Tie Company v. Simmons

S. A. Duncan, for appellants.

B. F. Thurston, for appellees.

BLATCHFORD, J.

title: American Cotton-Tie Company v. Simmons


text: Talk:American Cotton-Tie Company v. Simmons


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American Cotton-Tie Company v. Simmons/Opinion of the Court

This is an appeal by the plaintiffs in a suit in equity from a decree dismissing the bill of complaint. The suit was brought for the infringement of three several letters patent: No. 19,490, granted to Frederic Cook, March 2, 1858, for an 'improvement in metallic ties for cotton-bales,' and extended for seven years from March 2, 1872; reissued letters patent No. 5,333, granted to James J. McComb, as assignee of George Brodie, March 25, 1873, for an 'improvement in cotton-bale ties,' (the original patent having been granted to Brodie as inventor March 22, 1859, and reissued to him April 27, 1869, and extended for seven years from March 22, 1873;) and No. 31,252, granted to J. J. McComb, January 29, 1861, for an 'improvement in iron ties for cotton-bales,' and extended for seven years from January 29, 1875. They are severally known as the Cook, the Brodie, and the McComb patents. The Cook patent expired March 2, 1879; the Brodie patent, March 22, 1880; and the McComb patent, January 29, 1882. The plaintiffs are the American Cotton-tie Company, (Limited,) a British corporation; James J. McComb, administrator of Mary F. McComb, deceased; and the said James J. McComb, Charles G. Johnson, and Emerson Foote, each in his own behalf and as a copartner in a firm called the American Cotton-tie Company. The defendants are Simeon W. Simmons and two other persons, doing business as the Providence Cotton-tie Company. The Cook patent was assigned to McComb March 21, 1872. The Brodie reissue of 1869, with all rights to reissue, renewal, and extension, was assigned to McComb March 19, 1873. On the twenty-second of June, 1874, McComb assigned to himself, Johnson, and Foote, who composed the firm called the American Cotton-tie Company, the Cook patent as extended, and the Brodie patent as reissued in 1869 and as extended. Mary F. McComb became, in 1861, the owner of the McComb patent. She died in 1874 intestate, and McComb was appointed her administrator. On the first of March, 1876, the firm called the American Cotton-tie Company assigned to the corporation called the American Cotton-tie Company, (Limited,) the Cook patent as extended, and the Brodie patent as extended and as reissued in 1873. On the same day, McComb, individually and as administrator, assigned to the said corporation the McComb patent and its extension.

The bill is in the usual form, and was filed in November, 1876. It alleges that the defendants have made, used, and sold to others to be used, the patented inventions, and also metallic ties for cotton bales containing the patented inventions. No defense affecting the validity of the patents sued on is set up in the answer. The only defense pleaded or made is as to infringement.

The corporation plaintiff, since it acquired title to the three patents in March, 1876, has carried on the business of making cotton bale ties under the patents. The form of tie it has principally made is the form of the McComb patent, which is called the 'arrow tie,' from the shape of the five-sided hole cut in the plate of the buckle. It has not granted any licenses to make the ties, but has itself supplied the demand for them. The tie consists of a buckle and a band all made of metal. The band goes around the bale, and the two ends of it are confined by means of the buckle. On each of the buckles which the corporation has made and put upon the market it has placed the words 'Licensed to use once only,' stamped into the body of the metal. This practice was also observed by its predecessor, the copartnership firm.

The tie, consisting of buckle and band, is purchased by the person who desires to use it to confine the cotton in the bale, and is placed around the bale on the plantation or at the cotton-press. It remains on the bale until the bale reaches the cotton-mill, and the band of the tie which is of hoop-iron, is then cut. The buckle and the band, thus free, become scrap-iron, and are sold as such. The hoop is too short for the length required for baling, if it were to be mended by lapping and riveting the two ends at the place of severance, and to bale with it requires that there should be a free end which may be confined at the buckle in the process of baling. The defendants buy the buckles and severed hoops at the cotton-mills, as scrap-iron, the hoops, when bought, being in bundles, bent, and being pieces of unequal lengths, some cut at one distance from the buckle and some at another. The defendants straighten the old pieces of hoop and roll them by cold rolling, and punch the ends with holes, and rivet the pieces together, and form a band by cutting it to the proper length, which band, with the buckle accompanying it, makes a tie ready for use. In using the tie one end of the band is attached to one end of the buckle by a loop in that end of the band, and then the band is passed around the bale, and its free end is slipped, by a loop made in it, through a slit in the buckle, around the other end of the buckle while the bale is under pressure. When the pressure is removed the expansive force of the compressed cotton holds the looped ends of the bands in place in the buckle, the looped ends being confined between the bale and the body of the band. The use of the arrow tie has been very extensive. The defendants sell to others to be used the ties which they so prepare, and do not themselves bale cotton with them. Baled cotton is sold in the United States without tare; that is, the iron of the buckle and the hoop is weighed with the cotton and the bagging, and the whole is sold by weight at the price of the cotton per pound. The scrap-iron, consisting of the buckles and cut hoops, is sold at 1 1/4 cents per pound, while the corporation sells its ties at 6 cents per pound.

The specification of the Cook patent describes a buckle with a slot cut through one of its end-bars, so that the end of the band may be slipped through sidewise instead of being pushed through endwise. The third claim is to 'the herein-described 'slot,' cut through one bar of clasp, which enables the end of the tie or hoop to be slipped sidewise underneath the bar in clasp, so as to effect the fastening with greater rapidity than by passing the end of the tie through endwise.'

The specification of the Brodie reissue states that his invention 'relates to the combination with open-slot ties of metallic bands having their ends free, and held in position by the expansion of the bale.' Some of the drawings show an open slotted link or buckle in connection with a band, and the specification states that the ends of the band are 'turned under the link and held in position by the pressure exerted by the expansion of the bale.' It adds: 'In the latter mode of use the slack may be readily taken up by forming the loop in the iron at the moment of making the fastening, and passing the end thus looped through the opening in the side of the link. The band is thus slipped sidewise through the opening into the slot, instead of thrusting it through endwise.' The third, fourth, and fifth claims of the Brodie reissue are in these words:

'3. The combination of an open slot for introducing the band     sidewise with a link having a single rectangular opening for      holding both ends of a metallic band, and the band.

'4. An open slotted link, when combined with metallic bands,     the ends of which are turned under the link and held in      position by the expansion of the bale.

'5. The method of baling cotton with metallic bands, and     taking up the slack of the band by bending the same at any      desired point into the form of a loop, and passing such loop      sidewise through an open slit into the slot intended to      receive it, and over the bar of the clasp intended to hold      it.' The specification of the McComb patent states that the nature of his invention 'consists in the use of a peculiarly-shaped buckle as a fastening or tie for the ends of the iron hoops.' It says that the 'buckle is a piece of wrought iron, or other metallic substance, about the eighth of an inch thick, an inch and three-quarters wide, and two inches long, (the size being modified to suit the width of the hoop used,) with an oblong hole or aperture cut or punched through the center;' that the five sides of the plate of the buckle are equal and parallel; and that the two largest of the five sides of the oblong hole are of equal length, and are equal in length to the width of the hoop. The drawings show the two sides forming the arrow part as of equal length. The slit or slot is cut through one of the sides of the plate opposite one of the two longest sides of the central hole, so that one of the loops of the hoop stretches across and covers the slit. The claim of the patent is this:

'Forming a link or tie with an oblong aperture, one end of     which is arrowshaped, or rather presents two sides of an      equilateral triangle, the design of this arrow-shaped end      being, not only to force the loop or bend of the hoop over      the slot, which it does with unerring precision when the bale      expands after being released from the press, but also to      secure an equal bearing upon the separated parts of the      slotted side of the tie.'

A buckle without a band will not confine a bale of cotton. Although the defendants use a second time buckles originally made by those owning the patents and put by them on the market, they do not use a second time the original bands in the condition in which those bands were originally put forth with such buckles. They use bands made by piecing together severed pieces of the old bands. The band in a condition fit for use with the buckle is an element in the third claim of the Brodie reissue. That claim is for a combination of the open slot arranged to allow of the sidewise introduction of the band, the link or buckle with the single rectangular opening arranged so as to hold both ends of the band, and the band. The old buckle which the defendants sell has the slot of Cook, and the slot and rectangular opening of Brodie, and the slot and arrow-shaped opening of McComb. Whatever right the defendants could acquire to the use of the old buckle, they acquired no right to combine it with a substantially new band, to make a cotton-bale tie. They so combined it when they combined it with a band made of the pieces of the old band in the way described. What the defendants did in piecing together the pieces of the old band was not a repair of the band or the tie, in any proper sense. The band was voluntarily severed by the consumer at the cotton-mill because the tie had performed its function of confining the bale of cotton in its transit from the plantation or the press to the mill. Its capacity for use as a tie was voluntarily destroyed. As it left the bale it could not be used again as a tie. As a tie the defendants reconstructed it, although they used the old buckle without repairing that. The case is not like putting new cutters into a planing-machine, as in Wilson v. Simpson, 9 How. 109, in place of cutters worn out by use. The principle of that case was that temporary parts wearing out in a machine might be replaced to preserve the machine, in accordance with the intention of the venodr, without amounting to a reconstruction of the machine.

The defendants contend that they do not combine the band with the buckle, and do not infringe the third claim of the Cook patent, or the third, fourth, and fifth claims of the Brodie reissue, or the claim of the McComb patent, because they do not bale cotton with the tie. But they participate in combining the open slot, the buckle, and the band, the whole being so arranged that the ends of the band can be turned under the buckle and held in position by the expansion of the bale, and that the slack of the band can be taken up by bending the band into the form of a loop, and passing the loop sidewise through the open slit into the hole and over the holding-bar of the plate. They sell the tie having the capacity of use in the manner described, and intended to be so used. Only the bale of cotton and the press are needed to produce the result set forth in the specifications of the patents, and without the bale of cotton and the press the tie would not be made or sold. The slot through the end-bar of the buckle in the Cook patent is of no practical use apart from the band and the bale of cotton, and the same thing is true of the link of the McComb patent with its arrow-shaped aperture; and, although a per son who merely makes and sells the buckle or link in each case may be liable for infringing those patents, he is so liable only as he is regarded as doing what he does with the purpose of having the buckle or link combined with a band and used to bale cotton. Because the defendants prepare and sell the arrow tie, composed of the buckle or link and the band, intending to have it used to bale cotton and to produce the results set forth in the Cook and the McComb patents, they infringe those patents. Saxe v. Hammond, 1 Holmes, 456; Bowker v. Dows, 3 Bann. & Ard. 518. We do not decide that they are liable as infringers of either of the three patents merely because they have sold the buckle considered apart from the band or from the entire structure as a tie.

We are therefore of opinion that the defendants have infringed the third claim of the Cook patent, the third, fourth, and fifth claims of the Brodie reissue, and the claim of the McComb patent. The decree of the circuit ocurt is reversed, with costs, with directions to enter a decree for the plaintiffs, in respect to those claims, for an account of profits and damages, as prayed in the bill, and to take such further proceedings in the suit as may be in conformity with the opinion of this court.


text: Talk:American Cotton-Tie Company v. Simmons/Opinion of the Court


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Page:Babyhood of Wild Beasts.djvu/21

 precious, in truth, that she will gladly give her own life if need be for their protection. Could a human mother do more? She's a tender and patient teacher, this wild mother; her little ones must be taught self-protection, a knowledge of wood craft and forest lore, who are enemies and who are friends.

The hunted creatures develop a marvellous sagacity for detecting signs and scents and prove in many ways that experience and careful training stands them in better stead than instinct. Animals are gifted with natural endowments the same as human beings are—no two animals are mentally equal. Consequently the brighter ones are apt to enjoy longer life and a greater degree of prosperity than their more stupid brothers. Some excel in thrift, others in cunning, great speed, endurance, foresight, a highly developed organism for sensing things, the ability to plan, to execute, command, serve and obey. Such are the things they have in common with us.

In writing this book I have tried to be true to the last detail. This work is not fiction. It

title: Page:Babyhood of Wild Beasts.djvu/21


text: Author talk:Alexander Taylor Innes

title: Author talk:Alexander Taylor Innes


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Brown v. State of Colorado

Charles Case and J. H. Brown, for plaintiff in error.

Charles H. Toll, Atty. Gen., and H. M. Teller, for defendant in error.

WAITE, C. J.

title: Brown v. State of Colorado


text: Talk:Brown v. State of Colorado

title: Talk:Brown v. State of Colorado


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Brown v. State of Colorado/Opinion of the Court

This is a writ of error to the supreme court of Colorado to reverse the judgment of that court in a suit in ejectment brought by the state against the plaintiff in error, and a motion has been made to dismiss for want of jurisdiction.

It is not claimed that any question which can give us jurisdiction was directly raised by the pleadings, but on the trial the state, to make out its title, offered in evidence a deed from Brown, the plaintiff in error, to the territory of Colorado. To the introduction of this deed in evidence an objection was made, on the ground, among others, 'that the territory of Colorado had no right to take a conveyance of real estate at the time of making the deed without the consent of the government of the United States.' This objection was overruled and an exception taken. When the case went to the supreme court, one of the assignments of error was to the effect that the court erred in receiving this deed in evidence. As the judgment of the district court was affirmed, this assignment of error must have been overruled. It is claimed that on account of this the judgment is reviewable here.

To give us jurisdiction under section 709 of the Revised Statutes, it must in some way appear from the return which is made to the writ of error that 'the validity of a treaty or statute of, or an authority exercised under, the United States' has been drawn in question and the decision is against their validity; or that 'the validity of a statute of, or an authority exercised under, any state' has been drawn in question 'on the ground of their being repugnant to the constitution, treaties, or laws of the United States,' and the decision is in favor of their validity; or that some 'title, right, privilege, or immunity is claimed under the constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity' so claimed.

It certainly does not appear that in this case the court below decided against the validity of any treaty, statute, or authority of the United States, or in favor of any statute or authority of a state claimed to be repugnant to the constitution, treaties, or laws of the United States. All the plaintiff in error insisted upon below was that the territory of Colorado could not take a conveyance of real property without the consent of the government of the United States; but whether this disability grew out of a statute of the United States, or of the territory, is not stated. We know, judicially, and so did the court below, that congress granted the territory legislative power over all rightful subjects of legislation consistent with the constitution and the provisions of the organic act, (12 St. 172, c. 59, § 6,) and that neither the constitution nor the organic act contained, in express terms, any such limitation as is now contended for. There is nowhere in any part of the record the least indication that any particular statute of the United States was brought to the attention of the court below, and a ruling asked upon it in connection with the objection which was made to the admissibility of the deed. No judge, in deciding upon the objection, as it was made and presented, would be likely to suppose that if he admitted the evidence he would deny the defendant any 'right, title, privilege, or immunity' 'set up or claimed' under a statute of the United States. Certainly if the judgments of the courts of the states are to be reviewed here for decisions upon such questions, it should be only when it appears unmistakably that the court either knew or ought to have known that such a question was involved in the decision to be made. The rule was stated by Mr. Justice MILLER in Bridge Proprietors v. Hoboken Co. 1 Wall. 143, thus: 'The court must be able to see clearly, from the whole record, that a certain provision of the constitution or act of congress was relied on by the party who brings the writ of error, and that the right thus claimed by him was denied.' While Mr. Justice STORY, in Crowell v. Randall, 10 Pet. 368, said that it was not necessary that the question should appear on the record to have been raised and the decision made in direct and positive terms, ipsissimis verbis; and that it was sufficient if it appeared by clear and necessary intendment that the question must have been raised, and must have been decided in order to have induced the judgment. He also said it was 'not sufficient to show that a question might have arisen or been applicable to the case, unless it is further shown, on the record, that it did arise, and was applied by the state court to the case.' Under this rule, it is clear the admission of the deed did not necessarily involve any such error as will give us jurisdiction.

Neither does the record show that a decision was rendered below in favor of the validity of any law of Colorado impairing the obligations of a contract. No such question was presented by the pleadings, and the rulings do not indicate that anything of the kind was brought to the attention of the court; but if the point made here in the argument had been made below, it would not have altered the condition of the case in regard to our jurisdiction. The claim is that the territory of Colorado contracted with the plaintiff in error to erect a capitol and other public buildings on the premises conveyed; but, if that were so, the constitution of the state and the statutes relied on, did not impair the obligation of such a contract. The most that can be said of them is that, in this way, the contract was violated by the state. The question is not, whether the constitutional provisions and the statutes in question are valid, but whether, by the adoption of the constitution by the people, and the passage of the statutes by the legislature, any condition attached to the conveyance has been broken which authorized the plaintiff in error to revoke his deed and take possession of the property he conveyed. The decision of this question by the state court is not reviewable here. All the obligations of the original contract remain, and the state has not attempted to impair them. If the contract is all the plaintiff in error claims it to be, and the constitution and statutes are just what he says they are, the most that can be contended for is that the state has refused to do what the territory agreed should be done. This may violate the contract, but it does not in any way impair its obligation. If we should declare the constitutional provisions and the statutes invalid as against the contract, it would not change the rights of the parties in this action. Whether valid or invalid, the plaintiff in error could not defend the action successfully, unless he was entitled to revoke his deed and re-enter upon his land, in case the territory, or the state, delayed for an unreasonable time to erect the buildings which were contemplated. If he could, the constitution and the statutes would have no other effect than as evidence to show that the state had deliberately refused to perform.

It follows that the case presents no question which can be considered here, and the motion to dismiss is granted.


text: Talk:Brown v. State of Colorado/Opinion of the Court


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Bacon v. Rives

Joseph Bryan, for appellants.

E. R. Watson, for appellees.

HARLAN, J.

title: Bacon v. Rives


text: Talk:Bacon v. Rives

title: Talk:Bacon v. Rives