text:
Insurance Company v. Mosley

APPEAL from the Circuit Court for the Northern District of Illinois, the case being this:

The Travellers' Insurance Company of Chicago insured the life of one Mosley for $5000, in favor of his wife.

'Within ninety days, after sufficient proof that the assured at any time within twelve months after the date of this policy shall have sustained personal injury, caused by any accident within the meaning of this policy and the conditions hereunto annexed, and such injuries shall occasion death within three months from the happening thereof.'

The policy among other provisos contained this one:

'Provided always, That no claim shall be made under this policy by the said assured, in respect of any injury, unless the same shall be caused by some outward and visible means, of which proof satisfactory to the company can be furnished, and this insurance shall not extend to any injury caused by or arising from natural disease.'

Mosley having died within the term for which his life was insured, his wife, who alleged that he had died from personal injury, caused by accident, demanded the $5000 of the company, which they declined to pay. She thereupon brought assumpsit on the policy. The declaration alleged, that on the 21st of July, 1866, the said Mosley 'accidentally fell down a pair of stairs and was severely injured thereby, and that he, within three months after the happening of the said accident, to wit, &c., died from the effects of the said accidental fall, and that the death was occasioned by the said injury and accident, and that the defendant had sufficient proof of said accident and death ninety days before the commencement of this suit.' On a plea of the general issue and a trial before a jury, the main point in question was the cause of the death of Mr. Mosley; the plaintiff contending that it was the consequence of a fall that he met with in going into his back yard on the night between the 18th and 19th of July, 1866, and the defendant, that it was not.

It appeared that Mr. Mosley was in his usual health until that night; that he and Mrs. Mosley had gone to bed; that between 12 and 1 o'clock he got up and went down stairs; that he came up and complained to his wife and son of having had a fall; and that the symptoms were described by him at the time; that he continued ill until Monday, the 22d, when he died. There was testimony, medical and other, given of his mental and bodily condition from the time of the alleged accident up to the time of his death; there was also medical testimony given of his condition after death, and of an examination of the cranium and brain, externally and internally. The plaintiff insisted that the evidence she introduced tended to show that Mr. Mosley died in consequence of the fall before referred to, and the defendant insisted that the evidence introduced by the company tended to show that death was not caused by any fall, but was in consequence of disease, (congestion of the brain.)Mrs. Mosley testified in her own behalf, that on Wednesday night, the 18th of July, 1866, she and her husband had gone to bed. Between twelve and one o'clock he got up and went down stairs for the purpose of going out back; she didn't know how long he was gone. When he came back he said he had fallen down the back stairs and almost killed himself; that he had hit and hurt the back of his head in falling down the stairs which led out back. She noticed that his voice trembled, and she inquired into the matter at once. He complained of his head, and appeared faint and vomited; he threw up almost as soon as he got into the room; she got up, and he laid down on the sofa. He had nothing on but his pataloons and vest; she didn't sleep any more that night, and was up with him all night. He complained and appeared to be in great pain. She asked him if she should send for Dr. Webster, who lived near, but he said no; he thought he should be better, and she did not then call the Doctor. On Thursday morning he said he felt bad, and there was a recurrence of fainting.

To all that portion of the testimony of Mrs. Mosley which set forth the declarations of her husband about his falling down the back stairs and almost killing himself and hurting the back part of his head, the defendant's counsel objected, and their objection being overruled, the defendant excepted.

A son of the assured, testified in behalf of the plaintiff, 'that he slept in the lower part of the building occupied by his father; that about 12 o'clock of the night before mentioned he saw his father lying with his head on the counter, and asked him what was the matter; he replied that he had fallen down the back stairs and hurt himself very badly.' The defendants objected to both the question and answer. An exception to their admission followed.

The same witness testified further, 'that on the day after the fall, his father said he felt very badly, and that if he attempted to walk across the room his head became dizzy; on the following day he said he was a little worse, if anything.' The admission of this testimony also was excepted to by the defendants.

There was no witness who testified that he saw the deceased fall down stairs; though several did, that there were such back stairs as it was testified that he spoke of falling down.

Verdict and judgment having been given for the plaintiff, and the case being here, the questions as presented by the bill of exceptions were:

1. Whether the court erred in admitting the declarations of the assured as to his bodily injuries and pains?

2. Whether it erred in admitting such declarations to prove that he had fallen down the stairs?

Mr. Sansum, for the plaintiff in error:

Without spending time upon the first of the questions presented by a technical division of the bill of exceptions-and a decision on which, adverse to our view of law, does not affect our main objections-we contend that the widow must show—

1st. That her husband died from injuries caused by accident, and,

2d. That the proof thereof was satisfactory to the insurance company.

The insurance is not against death generally, but against death from accidental injuries.

1. It is expressly provided that proof satisfactory to the company shall be made. It is the judge as to what proof shall be satisfactory. This may be a hard agreement, but it is the contract between the parties, and the court will enforce the contract that the parties have made. The company, by refusing to pay, and by contesting the demand, says, that the proof of the injuries and accident are not satisfactory. There is no allegation in the declaration that proof of the injuries and accident has been satisfactory to it.

2. As it is a part of the case, that no witness was called to prove that the deceased fell down the stairs, it cannot be presumed that evidence was given to prove an accident. And supposing that the court shall go so far as to hold that the declarations of the deceased are admissible to establish the fact that he did fall, still there is nothing in them to show that it was an accidental fall.

The declarations of the deceased made to his wife and son four days before he died, ought not to have been admitted to establish the fact that deceased did fall down the stairs in question, because they are clearly hearsay, and they come not within any of the exceptions to the general rule that derivative or secondhand statements are not receivable as evidence in causa. The reasons against admitting them are that the party against whom the evidence is offered has had no opportunity to cross-examine the original source; and, that assuming the original statement to be correctly reported, it was not originally made under the sanction of an oath; and, though it were made under the sanction of an oath in judicio, it is not admissible unless the party against whom it is offered had the right and opportunity to crossexamine, but neglected it.

The fact which defendant in error seeks to establish by mere declarations, is not one of reputation, nor of pedigree. or boundary. None of these established exceptions apply.

Nor as dying declarations were they admissible. This is plain.

Nor are they ''res gestoe. Res gestoe'' are the surrounding facts of a transaction, and may be submitted to a jury provided they can be established by competent means, sanctioned by the law, and afford any fair presumption or inference as to the question in dispute. And again, declarations accompanying an act, explanatory of that act, are res gestoe. They are the surrounding facts, explanatory of an act, or showing a motive for acting. But the principal fact must be first established, and until it is established, surrounding facts are not admissible-and, certainly, exhibiting surrounding facts in not establishing a principal fact. For example: A merchant leaves his place of residence or denies himself to his creditors. That he left his place of residence, or denied himself to his creditors, upon an issue of bankruptcy, are material facts; and one of these being proven, his decla rations made to others explaining why he left it, or denied himself, are admissible as res gestoe; but it would not be competent to show what he said, unless it were first made to appear that he has denied, or left his place of residence.

Mr. Peck, contra, relied on Aveson v. Kinnaird as decisive of the case.

Reply.-The counsel for the widow cite Aveson v. Kinnaird, and it is relied upon. But that case makes against the plaintiff. The issue there was, whether the insured was in good health at the time the policy then in question was effected on her life by her husband. A few days after the physician examined her, and made inquiries of her about her health. She was seen in bed at 11 o'clock in the forenoon; and a witness was called to testify to the fact that she saw the deceased in bed at the time mentioned, and that the deceased then said she was not in good health, and that she was afraid she would die before the policy could be delivered. The fact that deceased was in bed was established by the witness. This was a material fact to be established upon the issue made in the case, viz., whether the deceased was in good health at the time; and doubtless the declarations of the deceased were admissible, explaining why she was in bed. Upon an issue as to whether the deceased was well or ill at the time in question, her declarations were admissible; for one's feelings while suffering from any malady are the true indicators of that malady, and how the deceased in the case cited felt could only be ascertained by what she said. The case was one of necessity as well as res gestoe. The very nature of that case made it necessary to show what the deceased said as to how she felt; and being found sick in bed, her declarations why she was there is a surrounding fact, explanatory of the material fact-being found in bed.

The declarations of the deceased, in the case at bar, as they show how he felt in the presence of the witnesses, are res gestoe so far as they are explanatory of the other facts that were occurring then. But as evidence of his fall down the stairs, they are not competent.

The fact that deceased declared to his wife that he had fallen down the back stairs and hit his head, is not the point here in controversy. The point in controversy is, did the deceased fall down the stairs in question, and was the fall accidental? The declaration of the deceased, made to his wife, as she says, several days before he died, is all that we have upon the facts in question. If not competent to prove the fall, how is it enough to prove the accidental character of it?

Mr. Justice SWAYNE delivered the opinion of the court.

title: Insurance Company v. Mosley


text: Talk:Insurance Company v. Mosley

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:Insurance Company v. Mosley


text:
Insurance Company v. Mosley/Opinion of the Court

This is a writ of error to the Circuit Court of the United States for the Northern District of Illinois. The action was upon a policy of insurance. It insured Arthur H. Mosley against loss of life, or personal by any accident within the meaning of the instrument, and was issued to Mrs. Arthur H. Mosley, the wife of the assured, for her benefit. The declaration was in assumpsit. The defendant pleaded the general issue, and the cause was tried by a jury. The plaintiff recovered. During the trial, a bill of exceptions was taken by the plaintiff in error, by which it appears that the contest between the parties was upon the question of fact, whether Arthur H. Mosley, the assured, died from the effects of an accidental fall down stairs in the night, or from natural causes.

The defendant in error was called as a witness in her own behalf, and testified, 'that the assured left his bed Wednesday night, the 18th of July, 1866, between 12 and 1 o'clock; that when he came back, he said he had fallen down the back stairs, and almost killed himself; that he had hit the back part of his head in falling down stairs;. . . she noticed that his voice trembled; he complained of his head, and appeared to be faint and in great pain.'

To the admission of all that part of the testimony which relates to the declarations of the assured, about his falling down stairs, and the injuries he received by the fall, the counsel of the defendants objected. The court overruled the objection, and the defendants excepted.

William H. Mosley, son of the assured, testified, in behalf of the plaintiff, 'that he slept in the lower part of the building, occupied by his father; that about 12 o'clock of the night before-mentioned, he saw his father lying with his head on the counter, and asked him what was the matter; he replied, that he had fallen down the back stairs and hurt himself very badly.' The defendants objected to both the question and answer. An exception to their admission followed.

The same witness testified further, 'that on the day after the fall, his father said he felt very badly, and that if he attempted to walk across the room, his head became dizzy; on the following day, he said he was a little worse, if anything.' The admission of this testimony also was excepted to by the defendants.

This statement presents the questions which we are called upon to consider. They are, whether the court erred in admitting the declarations of the assured, as to his bodily injuries and pains, and whether it was error to admit such declarations, to prove that he had fallen down the stairs.

It is to be remarked, that the declarations of the former class all related to present existing facts at the time they were made.

Those of the latter class were made immediately, or very soon after the fall; the declarations to his son, before he returned to his bed-room; those to his wife, upon his reaching there.

Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Those expressions are the natural reflexes of what it might be impossible to show by other testimony. If there be such other testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As independent explanatory or corroborative evidence, it is often indispensable to the due administration of justice. Such declarations are regarded as verbal acts, and are as competent as any other testimony, when relevant to the issue. Their truth or falsity is an inquiry for the jury.

In actions for the breach of a promise to marry, such evidence is always received to show the affection of the plaintiff for the defendant while the engagement subsisted, and the state of her feelings after it was broken off; and in actions for criminal conversation, to show the terms upon which the plaintiff and his wife lived together before the cause of action arose. Upon the same ground, the declarations of the party himself are received to prove his condition, ills, pains, and symptoms, whether arising from sickness, or an injury by accident or violence. If made to a medical attendant, they are of more weight than if made to another person. But to whomsoever made, they are competent evidence. Upon these points, the leading writers upon the law of evidence, both in this country and in England, are in accord.

There is a limitation of this doctrine that must be carefully observed in its application.

Such evidence must not be extended beyond the necessity upon which the rule is founded. It must relate to the present, and not to the past. Anything in the nature of narration must be excluded. It must be confined strictly to such complaints, expressions, and exclamations, as furnish evidence of 'a present existing pain or malady.' Examined by the standard of these rules, the testimony to which this exception relates was properly admitted.

The other exception requires a fuller examination.

Was it competent to prove the fall by the declarations of the assured made under the circumstances disclosed in the bill of exceptions?

In Thompson and Wife v. Trevanion, the action was for the battery and wounding of the wife. Lord Chief Justice Holt 'allowed, what the wife said immediately upon the hurt received, and before that she had time to contrive or devise anything for her own advantage, to be given in evidence.' The reporter adds: 'Quod nota. This was at nisi prius, in Middlesex, for wounding the wife of the plaintiff.' This case was referred to by Lord Ellenborough with approbation in the case before him of Aveson v. Kinnaird. In that case, Lawrence, Justice, in answer to the objection, that such evidence was hearsay, said: 'It is in every day's experience in actions of assault, that what a man has said of himself, to his surgeon, is evidence to show what he has suffered by the assault.'

The King v. Foster was an indictment for manslaughter, for killing the deceased by driving a cab over him. A wagoner was called as a witness for the prosecution. He stated that he saw the cab drive by at a very rapid rate, but did not see the accident, and that immediately after, on hearing the deceased groan, he went to him and asked him what was the matter. The counsel for the prisoner objected, that what was said by the deceased, in the absence of the prisoner, could not be received in evidence.

Gurney, Baron, said, that what the deceased said at the instant, as to the cause of the accident, was clearly admissible.

Park, Justice, said, that it was the best possible testimony that, under the circumstances, could be adduced to show what knocked the deceased down. Mr. Justice Patterson concurred. The prisoner was convicted.

In the Commonwealth v. Pike, the indictment, as in the preceding case, was for manslaughter. The defendant was charged with killing his wife. It appeared that the deceased ran up stairs from her own room, in the night, crying murder, and bleeding. Another woman, into whose room she was admitted, went, at her request, for a physician. A third person, who heard her cries, went for a watchman, and, on his return, proceeded to the room where she was. He found her on the floor, bleeding profusely. She said the defendant had stabbed her. The defendant's counsel objected to the admission of this declaration in evidence. The objection was overruled. The Supreme Court of Massachusetts held, that the evidence was properly admitted. It was said that the declaration was 'of the nature of res gestoe,' and that the time when it was made was so recent, after the injury was inflicted, as to justify receiving it upon that ground.

It is not easy to distinguish this case and that of The King v. Foster, in principle, from the case before us, as regards the point under consideration.

In Aveson v. Kinnaird, it was said by Lord Ellenborough, that the declarations were admitted in the case in Skinner, because they were a part of the res gestoe.

To bring such declarations within this principle, generally, they must be contemporaneous with the main fact to which they relate. But this rule is, by no means, of universal application. In Rawson v. Haigh, a debtor had left England and gone to Paris, where he remained. The question was, whether his departure from England was an act of bankruptcy, and that depended upon the intent by which he was actuated. To show this intent, a letter written in France, a month after his departure, was received in evidence. Upon full argument, it was held that it was properly received. Baron Park said: 'It is impossible to tie down to time the rule as to the declarations. We must judge from all the circumstances of the case. We need not go the length of saying, that a declaration, made a month after the fact, would, of itself, be admissible; but if, as in the present case, there are connecting circumstances, it may, even at that time, form a part of the Whole res gestoe.'

Where a peddler's wagon was struck and the peddler injured by a locomotive, the Supreme Court of Pennsylvania said: 'We cannot say that the declaration of the engineer was no part of the res gestoe. It was made at the time-in view of the goods strewn along the road by the breaking up of the boxes and seems to have grown directly out of and immediately after the happening of the fact.' The declaration was held to be 'a part of the transaction itself.'

In the complexity of human affairs, what is done and what is said are often so related that neither can be detached without leaving the residue fragmentary and distroted. There may be fraud and falsehood as to both; but there is no ground of objection to one that does not exist equally as to the other. To reject the verbal fact would not unfrequently have the same effect as to strike out the controlling member from a sentence, or the controlling sentence from its context. The doctrine of res gestoe was considered, by this court, in Beaver v. Taylor. What was said in that case need not be repeated. Here the principal fact is the bodily injury. The res gestoe are the statements of the cause made by the assured almost contemporaneously with its occurrence, and those relating to the consequences made while the letter subsisted and were in progress. Where sickness or affection is the subject of inquiry, the sickness or affection is the principal fact. The res gestoe are the declarations tending to show the reality of its existence, and its extent and character. The tendency of recent adjudications is to extend rather than to narrow, the scope of the doctrine. Rightly guarded in its practical application, there is no principle in the law of evidence more safe in its results. There is none which rests on a more solied basis of reason and authority. We think it was properly applied in the court below.

In the ordinary concerns of life, no one would doubt the truth of these declarations, or hesitate to regard them, uncontradicted, as conclusive. Their probative force would not be questioned. Unlike much other evidence, equally cogent for all the purposes of moral conviction, they have the sanction of law as well as of reason. The want of this concurrence in the law is often deeply to be regretted. The weight of this reflection, in reference to the case under consideration, is increased by the fact, that what was said could not be received as 'dying declarations,' although the person who made them was dead, and hence, could not be called as a witness.

JUDGMENT AFFIRMED.


text: Talk:Insurance Company v. Mosley/Opinion of the Court


text:
Blanchard v. Putnam

ERROR to the Circuit Court for the Southern District of Ohio, the case being thus:

The 15th section of the Patent Act enacts, that whenever the defendant relies in his defence on the fact of a previous invention, knowledge, or use of the thing patented, 'he shall state in his notice of special matter, the names and places of residence of those whom he intends to prove to have possessed a prior knowledge of the thing, and where the same had been used,' and if he does not comply with that requirement no such evidence can be received under the general issue.

With this statute in force, Alonzo Blanchard and others, being owners by assignment of a patent for an improvement in bending wood, granted to Thomas Blanchard, December 18th, 1849, reisssued to him November 15th, 1859, and extended for seven years from December 18th, 1863, brought suit at law against Putnam and others for infringement. The defendants pleaded the general issue, but so far as the transcript of the general record showed, gave no notice of any special defence.

On the trial, the plaintiffs gave in evidence the original patent, the reissue, the certificate of renewal and extension, the assignment, and facts tending to prove the alleged infringement, and rested.

The defendants, who were licensees under a patent granted March 11th, 1856, and reissued May 22d, 1862, to one Morris, for an improvement in wood-bending machines, offered in evidence the reissue.

The plaintiff objected to the admission of that evidence, but the court overruling the objection, admitted it, and the plaintiff excepted.

The defendants called as a witness one W. Mitchell, and offered to prove by him, that in A.D. 1858, he saw in use at a factory of one Andrews, in Grand Detour, in the State of Illinois, a machine for bending plough handles, similar to a model then shown to the witness, and asserted by the defendants to be the same in its mode of operation as the plaintiff's patented machine; the defendants' counsel promising thereafter to connect the said evidence with other testimony, showing such a machine to have been in public use anterior to Blanchard's said invention. To 'which evidence,' said the bill of exceptions, 'the plaintiff objected as not competent or proper.' But the court overruled said objection and admitted the evidence. Other testimony was introduced by the defendants tending to prove that the machine described by the witness, or others like it, were in public use at that place before the date of the invention claimed and owned by the plaintiffs.

The court charged the jury at length. It told them that the defences to the action were:

1st. That the Blanchard machine was void for want of novelty.

2d. That the machine constructed under Morris's patent did not infringe.

On the first defence, while stating that it was not the intention of the court to go into an analysis of the testimony on the question of anticipation, the learned judge, nevertheless, enumerated the machines set up as prior inventions, leaving it for the jury to pass on the question of novelty, or the want of it.

The case was now here on exceptions.

Mr. G. M. Lee, by brief, for the plaintiff in error, observed that the machine of the defendants, in appearance, was somewhat unlike that patented by Blanchard, and that the defendants assert that it worked on a different principle from Blanchard's; while the plaintiffs assert it to be the same in principle and mode of operation as Blanchard's, and that it is covered by Blanchard's patent and claim; that the real question was, therefore, what construction should be given to Blanchard's patent; and that there was little else in the case.

The learned counsel then went into an examination of 'what the Blanchard patent and invention was; of its parts and office;' of the 'parts and office of Morris's patent and the defendant's machine;' and having shown, as he assumed, the errors of the charge upon a true view of the case, merely glanced at other errors, of these specifying five; the fourth being thus:

'We claim that William Mitchell's evidence was improperly admitted on the promise of defendant's counsel to afterwards so connect it with other evidence as would make it admissible. There is nothing to show it was ever so connected, and upon its face it was inadmissible.'

After specifying the five errors, the counsel added, towards the conclusion, that it was not necessary to argue the effect of the defendant's evidence showing the existence of prior machines, though really none of them showed any want of novelty in Blanchard; that this question became immaterial, because the jury were not called to pass upon it; that the court blotted out the question of novelty or state of the art by its charge, and in substance ordered the jury to find for defendants, because Blanchard's patent did not cover the stationary form used by defendants as the court held.

Mr. Fisher, contra, stated that the machine of the plaintiffs was what was known in the art as a 'rotating form machine,' and the machine of the defendants what was known in the art as the 'stationary form of machine,' and that the struggle of the parties in the case was upon the question of infringement, and the issue was finally resolved to the single point, whether in view of the state of the art, the plaintiffs' patent could be fairly construed to cover machines for bending wood in which stationary forms were employed.

So far as the reporter perceived, the plaintiff in error nowhere alleged nor alluded to, nor asked a reversal for error in receiving evidence of want of novelty, because proper notice in writing had not been given to the plaintiff as required by the 15th section of the Patent Act, quoted at the beginning of the statement of the case.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Blanchard v. Putnam


text: Talk:Blanchard v. Putnam

title: Talk:Blanchard v. Putnam


text:
Blanchard v. Putnam/Opinion of the Court

Damages for the infringement of letters patent may be recovered by the patentee, or by his assignee of the whole interest, or by his grantee of the exclusive right within and throughout any specified district, by a suit in equity or by an action on the case, at the election of the holder of the legal title.

Letters patent were granted to Thomas Blanchard, December 18th, 1849, for a new and useful improvement in bending wood, for and during the term of fourteen years from that date, but the specification being imperfect, on the fifteenth of November, 1859, he surrendered the patent, and the same was reissued to him, with an amended specification, for the residue of the original term.

Granted for the term of fourteen years only, the patent expired on the seventeenth of December, 1863, but the patentee having failed to obtain from the use and sale of his invention a reasonable remuneration for the time, ingenuity, and expense bestowed upon the same and the introduction thereof into use, the Commissioner of Patents renewed and extended the patent for the term of seven years from and after the expiration of the first term, giving it the same effect as if it had originally been granted for twenty-one years. Subsequent to the extension of the term the patentee deceased, and the patent was reissued to his executrix, from whom the plaintiffs derive title by virtue of an assignment in due form, as is conclusively admitted by the defendants.

Undoubted owners of the title to the patent the plaintiffs, on the twenty-third of November, 1865, instituted this suit, and the charge is that the defendants, on the second of November of the previous year, and on divers other days and times between that day and the commencement of the suit, infringed the exclusive right to the invention vested in the plaintiffs, by constructing and using ten machines for bending wood in imitation of the plaintiffs' invention, and in violation of the exclusive right secured to them in their letters patent. Process was issued, and being duly served the defendants appeared and pleaded the general issue, and upon that issue, unaccompanied by any notice to the plaintiffs of any special defence, the parties went to trial, and the verdict and judgment were for the defendants.

Exceptions were duly taken by the plaintiffs to certain rulings of the court in admitting evidence offered by the defendants, and to the instructions of the court, as given to the jury, and the only questions presented for decision are such as are involved in the exceptions to those rulings and instructions.

On the trial of the cause the plaintiffs, to sustain the issue on their part, introduced in evidence the reissued patent on which the suit was founded, together with the original patent and the certificate of renewal and extension; and having proved the assignment and introduced evidence tending to prove that the defendants had infringed the reissued patent, as alleged in the declaration, rested their case.

They might well rest in that state of the case, as the letters patent afforded prim a facie evidence that the patentee under whom they claimed was the original and first inventor of what is therein described as his improvement, and having introduced evidence tending to show infringement and damage, they were entitled to a verdict unless some evidence was introduced by the defendants to rebut the evidence given to prove infringement, or to establish some valid defence to the cause of action set forth in the declaration.

Influenced doubtless by that view of the case, the defendants offered in evidence the reissued patent granted to one John C. Morris, dated May 27, 1862, as the foundation for the introduction of evidence to show that the machine or machines which they were using were constructed by them under a license from the patentee in that patent, and in accordance with the specification and claims of that patent as reissued. Seasonable objection was made by the plaintiffs to the introduction of that patent, as evidence in the case, but the court overruled the objection and admitted it in evidence, and the plaintiffs excepted.

Such evidence was inadmissible for the purpose for which it was offered, and should have been excluded, as the novelty of the invention was no open, and because it presented on the question of infringement an immaterial issue not involved in the pleadings, and because the evidence was well calculated to mislead the jury by withdrawing their attention from the real subject-matter in controversy.

Apart from the question of damages two issues only were presented by the pleadings, and they were all which are involved in any similar case:

1. Whether the patentee in the patent on which the suit is founded is the original and first inventor of the alleged improvement, which the plaintiffs in this case established as a prim a facie presumption when they introduced in evidence the letters patent described in the declaration.

2. Whether the machine of the defendants infringes the plaintiffs' machine as described in the specification and claims of their letters patent.

Attempts are often made in the trial of patent cases to introduce such collateral issues on the question of infringement, but they are irregular and cannot be sanctioned, as the only proper comparison, on that issue, is of the defendants machine with that of the plaintiff, as prescribed in the pleadings. What the jury have to determine is, does the machine of the defendant infringe the machine of the plaintiff; and if it does not, then the defendant is entitled to a verdict; but if it does infringe the plaintiff's machine, then the plaintiff is entitled to his remedy, and it is no answer to the cause of action to plead or prove that the defendant is the licensee of the owner of another patent, and that his machine is constructed in accordance with that patent.

Controversies between litigants in court cannot be completed in that way, nor should the plaintiff be subjected to such outside issues, as he is clearly entitled to a verdict when he has proved that he is the original and first inventor of his improvement, and that the defendant has infringed his patent.

Suppose the rule in that respect is otherwise, still the judgment of the Circuit Court must be reversed, as the next exception to be considered is clearly well taken, and the error of the court is of such a character that it cannot be remedied in any other way than by granting a new trial.

Testimony was offered by the defendants to prove the existence and use, in 1858, at Grand Detour, in the State of Illinois, of a machine for bending plough handles, similar to a model shown to the witness under examination, and which, as is claimed by the defendants, was the same in its mode of operation as the patented machine of the plaintiffs.

Objection was seasonably made by the plaintiffs to the admissibility of the testimony, but the defendants stating that they expected to connect the same with the other testimony showing that the machine was in public use anterior to the invention described in the plaintiffs' patent, the court overruled the objection and admitted the testimony, and the bill of exceptions shows that other testimony was introduced by the defendants tending to prove that the machine described by the witness, or others like it, were in public use at that place before the date of the invention claimed and owned by the plaintiffs.

Evidence to prove such a defence is not admissible in any case without an antecedent compliance with the conditions specified in the fifteenth section of the Patent Act. Whenever the defendant relies in his defence on the fact of a previous invention, knowledge, or use of the thing patented, 'he shall state, in his notice of special matter, the names and places of residence of those whom he intends to prove to have possessed a prior knowledge of the thing, and where the same had been used,' and if he does not comply with that requirement no such evidence can be received under the general issue.

Unless the rule of law was so the plaintiff might often be surprised at the trial, as he would rely upon the presumption which the patent affords, that he or his assignor or grantor was the original and first inventor of the improvement in question, and would not think it necessary to summon witnesses to rebut the evidence introduced by the defendant attacking the novelty of his patent.

Other exceptions to the rulings of the court were taken by the plaintiffs to the same effect, but it is unnecessary to refer to them, as the charge of the court shows to a demonstration, that the court throughout the trial overlooked the fact that such evidence is not admissible in patent cases, unless it appears that the defendant, thirty days before the trial, gave notice in writing to the plaintiff, or his attorney, of his intention to give such special matter in evidence, as required in the fifteenth section of the Patent Act, and that the notice given constituted a compliance with the several conditions therein specified.

Compliance with that provision being a condition precedent to the right of the defendant to introduce such evidence, under the general issue, it necessarily follows that the onus probandi is on him to show that the required notice was given to the plaintiff thirty days before the trial, and if he fails to do so he cannot introduce any evidence to controvert the novelty of the patent.

Undoubtedly the plea of not guilty puts in issue the novelty of the invention as well as the charge of infringement, but the answer to that suggestion, as applied to this case, is that the letters patent, when introduced by the plaintiffs, afforded a prim a facie presumption that the assignor of the plaintiffs was the original and first inventor of the improvement, and as the defendants had not given to the plaintiffs the required notice that they intended to offer evidence at the trial to overcome that presumption, they had no right to introduce any such evidence, and it necessarily follows that the court had no right to submit any such question to the jury.

Two defences, said the court, are interposed by the defendants: (1.) That the patent is void for the want of novelty. (2.) That the machine constructed and used by the defendants does not infringe the patented machine of the plaintiffs; and the charge proceeds throughout upon the ground that both of those defences were open and were to be determined by the jury.

Extended remarks were made by the judge to the jury, upon the evidence produced by the defendants to impeach the novelty of the invention, and very full explanations were given to them in respect to the principles of law by which they were to be governed in determining that question. Most of the rules of law as stated by the judge are correct, but the difficulty is that no such questions were involved in the pleadings.

JUDGMENT REVERSED. NEW VENIRE ORDERED.


text: Talk:Blanchard v. Putnam/Opinion of the Court


text:
Home of the Friendless v. Rouse

ERROR to the Supreme Court of Missouri.

On the 3d of February, 1853, the legislature of Missouri passed 'an act to incorporate the Home of the Friendless, in the city of St. Louis.' The preamble and one section of the act were thus:

'WHEREAS, it is proposed to establish in the city of St. Louis a charitable institution, to be called 'The Home of the Friendless,' having for its object, to afford relief to destitute and suffering females, and the affairs of which shall be in the keeping of ladies, who contribute pecuniary aid to the institution; therefore, for the purpose of encouraging said undertaking, and enabling the parties engaged therein more fully and effectually to accomplish their laudable purpose,

'Be it enacted, &c., as follows:

'SECTION 1. All such persons, of the female sex, as heretofore have or hereafter may become contributors of pecuniary aid, as hereinafter specified, to said institution, shall be, and they are hereby, constituted a body politic and corporate, by the name of 'The Home of the Friendless,' and by that name shall have perpetual succession, and be capable in law as well to take, receive, and hold, as to dispose of, as they see proper, all and all manner of lands, tenements, rents, annuities, franchises, and other hereditaments and personal property which may be conducive to the objects of said institution; and all property of said corporation shall be exempt from taxation; and the sixth, seventh, and eighth sections of the first article of the act concerning corporations, approved March 19, 1845, shall not apply to this corporation.'

The sections thus referred to provided, that the charter of every incorporation that should thereafter be granted by the legislature should be subject to alteration, suspension, and repeal, at the discretion of the legislature.

The corporation was organized and set in action, and by gifts, grants, and devises, had acquired a considerable amount of real estate in St. Louis. A constitution, adopted by the State, in the year 1865, authorized the legislature to impose certain taxes, and soon after, the legislature did impose a tax upon the real property of the Home. The corporation declining to pay, the collector of taxes for the county was about to levy on and sell its real estate, when the corporation filed a bill in one of the State courts, praying for an injunction against collecting the taxes, on the ground that they were illegally assessed, all property of the Home being, by its act of incorporation, expressly exempted from taxation at all times. The defendant interposed a demurrer, which was overruled, and the judgment on the demurrer made final. The cause was removed to the Supreme Court of the State, and resulted in the reversal of the judgment of the lower court, and the dismissal of the bill or petition.

The case was now here for review; and Supreme Court of Missouri certifying, as a part of the record, that in the determination of the suit there was necessarily drawn in question the construction of that clause of the Constitution of the United States, which prohibits a State from passing a law impairing the obligation of a contract, and that the decision was against the right claimed by the complainant, and was necessary to the adjudication of the cause; thus bringing the case clearly within the 25th section of the Judiciary Act, which gives to this court in such cases a power to examine and affirm or reverse the decision of the State court.

The question was, whether the act of 1853 was a contract never to tax. If so, the subsequent act was in violation of that clause of the Constitution which says, that 'no State shall pass any law impairing the obligation of contracts.'

Mr. B. R. Curtis, for the appellant:

1. The charter contains not only an explicit promise on the part of the State, that whatever property should be owned by this charity should not be taxed, but, what is very unusual, if not unprecedented, it contains an assurance that the legislative power should not thereafter be used to interfere with this franchise.

The discretionary authority which the legislature reserved, in regard to corporations in general, it is declared, shall not exist as to this corporation.

The charter in express terms, holds out to the benevolent persons to whom it is addressed, that, if they will take upon themselves the burden of organizing this corporation, of making themselves, and soliciting from others, donations and grants, and of administering its affairs for the relief of suffering female poor of the city of St. Louis, the funds thus obtained, devoted, and held, shall not be diminished by taxation.

2. That the legislature had power to make this contract, and that when made and accepted it became one of the franchises of this corporation, of which it could not be deprived, is too well settled to require a citation of numerous authorities.

Messrs. Dick and Blair, contra:

1. The legislature, in 1853, for the mere consideration that the Home should be established, with no obligations or duties imposed upon it, had no power to promise that the State of Missouri should never have the legal authority to impose a tax upon any property which it might acquire, and, at the same time, confer upon it power to acquire an unlimited amount of property. The State may accept a bonus in place of a tax, or may fix upon a given rate of taxation, and thus, for a consideration, bargain away the power to levy taxes in the usual way. But this charter makes no such contract.

2. The legislature has not in the act of 1853, declared its intention to bind the State never to impose any such tax. The language used does not expressly say that the State forever is to be bound, and the law will not imply such meaning.

3. The rule of construction applicable to laws relied upon as contracts, granting to corporations special advantages, to the detriment of the public, is that they shall be construed strictly against the corporation.

4. There is no consideration stated in the law for the release from taxation. The establishment of the institution by the corporation, was the consideration which made the grant of the charter binding upon the State, and the contract to that extent is beyond the control of the State as a contracting party. But the exemption from taxation was a mere gratuity, intended to last during the pleasure of the State.

The legislature of 1853 omitted to provide for any advantage in the future to the State, which should be commensurate with the greater and growing advantage to the institution, which would accrue from the increase of taxes appropriated to its use with the increase of its property. The law shields the Home from rendering any account of the amount of public funds thus devoted to its use, and authorizes an unlimited increase.

This omission of the legislature, as the agent of the State, to provide for any commensurate advantage to the State, or for any check upon the corporation, is fatal to the instrument as a contract. For, first, it will not be held that the legislature could have intended any such arrangement to have been perpetual and obligatory as a contract on the people; and, second, if such was its intention, it had no such legal power as an agent. The cases already cited, with others, show this.

5. Retrospective laws divesting rights not secured by contract may be passed by a State

Reply.-To suppose that any consideration beyond the public objects for which this corporation was created was necessary as a basis of a contract is a mistake. The consideration is found in the nature of those objects, the acceptance of the charter, and the consequent implied undertaking to use its franchises in the way and for the purposes in which they were granted.

This has been the settled law of this court since the Dartmouth College case, and is fully set forth anew of late, in the Binghamton Bridge case, as the continuing and unalterable judgment of the court.

Mr. Justice DAVIS delivered the opinion of the court.

title: Home of the Friendless v. Rouse


text: Talk:Home of the Friendless v. Rouse

title: Talk:Home of the Friendless v. Rouse


text:
Home of the Friendless v. Rouse/Opinion of the Court

The case is relieved, by the certificate of the Supreme Court of Missouri, of all difficulty on the question of the jurisdiction of this court, and the important question raised by the record is, whether the State of Missouri contracted with the plaintiff in error not to tax its property. If it did so contract, it is undisputed that the assumed legislation, under the authority of which the property in controversy was taxed, impaired the obligation of this contract.

The object for which the Home of the Friendless was incorporated was to enable those persons of the female sex, who were desirous of establishing a charitable institution in St. Louis for the relief of destitute and suffering females, to carry out their laudable undertaking.

It can readily be seen that a charity of this kind would be of great benefit to the people of St. Louis, and that the legislature of the State would naturally be desirous of using all proper means to promote it. The purposes to be attained by such a charity are usually beyond the ability of individual effort, and require an association of persons who will themselves contribute pecuniary aid, and are willing to become solicitors for the contributions of others. Usually the initiation of such an enterprise is in the hands of a few persons who need to be clothed with more than ordinary powers in order to obtain the successful co-operation of others. In no way could this co-operation be better secured than by conferring on the corporators the authority to say to the benevolent people of St. Louis, that their donations in money or lands, for the relief of the suffering female poor of the city, would be held by the institution undiminished by taxation.

It was doubtless under the influence of these considerations, and because every government wishes to encourage benevolent enterprises, that the legislature granted the charter for the Home of the Friendless, and said to the charitable persons engaged in this business, that if they would organize the society and conduct its affairs, would give themselves and solicit others to give for the common purpose, 'that the property of the corporation shall be exempt from taxation.' This charter is a contract between the State of Missouri and the corporators that the property given for the charitable uses specified in it, shall, so long as it is applied to these uses, be exempted from taxation. It follows, that any attempt to tax it impairs the obligation of the contract. It is proper to observe, that the immunity from taxation does not attach to the property after the corporation has parted with it, but is operative on it while owned by the corporation, and devoted to the uses for which it was originally given.

It is objected that there is no consideration stated in the act for the release from taxation, which it is claimed is necessary in order to uphold the contract. But this is a mistaken view of the law on this subject.

There is no necessity of looking for the consideration for a legislative contract outside of the objects for which the corporation was created. These objects were deemed by the legislature to be beneficial to the community, and this benefit constitutes the consideration for the contract, and no other is required to support it. This has been the well-settled doctrine of this court on this subject since the case of Darmouth College v. Woodward.

It is contended that the rules of construction applicable to legislative contracts are more stringent than those which are applied to contracts between natural persons, and that, applying these rules to this contract, it cannot be sustained as a perpetual exemption from taxation.

It is true that legislative contracts are to be construed most favorably to the State if on a fair consideration to be given the charter, any reasonable doubts arise as to their proper interpretation; but, as every contract is to be construed to accomplish the intention of the parties to it, if there is no ambiguity about it, and this intention clearly appears on reading the instrument, it is as much the duty of the court to uphold and sustain it, as if it were a contract between private persons. Testing the contract in question by these rules, there does not seem to be any rational doubt about its true meaning. 'All property of said corporation shall be exempt from taxation,' are the words used in the act of incorporation, and there is no need of supplying any words to ascertain the legislative intention. To add the word 'forever' after the word 'taxation' could not make the meaning any clearer. It was undoubtedly the purpose of the legislature to grant to the corporation a valuable franchise, and it is easy to see that the franchise would be comparatively of little value if the legislature, without taking direct action on the subject, could at its will, resume the power of taxation. This view is fortified by the provisions of the general law of the State regarding corporations, in force at the time this charter was granted, and which the legislature declared should not apply to this corporation. The seventh section of the act concerning corporations, approved March 19, 1845, provided that 'the charter of every corporation that shall hereafter be granted by the legislature shall be subject to alteration, suspension, and repeal, in the discretion of the legislature.' As the charter in controversy was granted in 1853, it would have been subject to this general law if the legislature had not, in express terms, withdrawn from it this discretionary authority. Why the necessity of doing this if the exemption from taxation was only understood to continue at the pleasure of the legislature?

The validity of this contract is questioned at the bar on the ground that the legislature had no authority to grant away the power of taxation. The answer to this position is, that the question is no longer open for argument here, for it is settled by the repeated adjudications of this court, that a State may by contract based on a consideration, exempt the property of an individual or corporation from taxation, either for a specified period, or permanently. And it is equally well settled that the exemption is presumed to be on sufficient consideration, and binds the State if the charter containing it is accepted.

It is proper to say that the present constitution of Missouri prohibits the legislature from entering into a contract which exempts the property of an individual or corporation from taxation, but when the charter in question was passed there was no constitutional restraint on the action of the legislature in this regard.

Without pursuing the subject further, we are of the opinion that the State of Missouri did make a contract on sufficient consideration with the Home of the Friendless, to exempt the property of the corporation from taxation, and that the attempt made on behalf of the State through its authorized agent, notwithstanding this agreement, to compel it to pay taxes, is an indirect mode of impairing the obligation of the contract, and cannot be allowed.

JUDGMENT REVERSED, and the cause remanded to the court below, with directions to proceed

IN CONFORMITY WITH THIS OPINION.

The CHIEF JUSTICE, with MILLER and FIELD, JJ., dissented; see the opinion of MILLER, J., infra, p. 441, in the next case.

At the same time with the case just reported was argued and adjudged another in error to the same court. It was the case of


text: Talk:Home of the Friendless v. Rouse/Opinion of the Court


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The Washington University v. Rouse

IN this second case the charter was to the Washington University, an institution of learning. It was granted on the 22d of February, 1853, and by the same legislature which incorporated the Home of the Friendless on the 3d of that same February. It contained exactly the same provision about freedom of the corporation from taxation and from liability to have its charter interfered with at the discretion of the legislature, and the case came here under proceedings similar to those in the last case, and from the same court, and was argued by the same counsel, to wit:

Mr. B. R. Curtis, for the appellant; Messrs. Dick and Blair, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: The Washington University v. Rouse


text: Talk:The Washington University v. Rouse

title: Talk:The Washington University v. Rouse


text:
The Washington University v. Rouse/Opinion of the Court

There are no material points of difference between the case just decided and this case, and the views presented in that case are applicable to this. The object of the charter in the one was to promote a charity, in the other encourage learning. Both were public objects of advantage to the country, and which every government is desirous of promoting. Whether the endowment of a charity is of more concern to the State than the endowment of a university for learing, is with the power of the legislature to determine. If the legislature has acted in a manner to show that it considered both objects equally worthy of favor, it is not the province of this court to pass on the wisdom of the measure.

On the contrary, it is the duty of the court to carry out the intention of the legislature, if ascertainable, by applying to both charters the ordinary rules of construction applicable to legislative grants. In applying these rules to this charter, we find the existence of the same contract of permanent exemption from taxation, as in the charter of the Home of the Friendless. The State contracted in the one case as in the other, not to tax the property of the corporation, using the same words in both charters, to convey its meaning, and binding itself in the same terms, not to repeal or modify either charter in that regard. Both charters were passed by the same legislature, within a few days of each other, and neither charter is unusual in its provisions, except in this particular. The infence would, therefore, seem to be clear, that it was the legislative intention that both should, in this respect, be on an equality. The public purposes to be attained in each case constituted the consideration on which the contracts were based. The charter of the University, with its amendment (not material to notice, because not affecting this question), having been accepted, and the corporation, since its acceptance, having been actively employed in the specific purpose of which it was created, the exemption from taxation became one of the franchises of the corporation of which it would not be deprived by any species of State legislation.

It is urged that the corporation, as there is no limit to its right of acquisition, may acquire property beyond its legitimate wants, and in this way abuse the favor of the legislature, and, in the end, become dangerous, on account of its wealth and influence. It would seem that this apprehension is more imaginary than real, for the security against this course of action, is to be found in the nature of the object for which the corporation was created. It was created specially to promote the endowment of a seminary of learning, and it is not to be presumed that it will ever act in such a manner as to jeopardize its corporate rights; nor can there be any well-grounded fear that it will absorb, in its effort to establish a literary institution of a high order of merit, in the city of St. Louis, any more property than is necessary to accomplish that object. Should a state of case in the future arise, showing that the corporation has pursued a different line of conduct, it will be time enough then to determine the rights of the parties to this contract, under this altered condition of things. The present record presents no such question, and we have no right to anticipate that it will ever occur. It is enough for the purposes of this suit to say, that so long as the corporation uses its property to support the educational establishments for which it was organized, it does not forfeit its right not to be taxed under the contract which the State made with it.

We cannot see that the case of the University is distinguishable from that of the Home of the Friendless.

JUDGMENT REVERSED, and the cause remanded to the court below, with directions to proceed

IN CONFORMITY WITH THIS OPINION.


text: Talk:The Washington University v. Rouse/Opinion of the Court


text: Bronson v. Kimpton

title: Bronson v. Kimpton


text: Talk:Bronson v. Kimpton

title: Talk:Bronson v. Kimpton


text:
Bronson v. Kimpton/Opinion of the Court

APPEAL from the Court of Appeals of New York.

Kimpton filed a bill against Bronson in one of the State courts of New York to compel satisfaction of a mortgage executed by him to Bronson on the ground that it had been paid. The mortgage was given to secure a bond for the payment of a certain sum in gold and silver coin, lawful money of the United States. The payment relied on was a tender of United States notes equal in nominal amount to the sum due on the bond and mortgage. The Supreme Court of New York held the tender sufficient, and adjudged satisfaction; and this judgment was affirmed by the Court of Appeals, and was now here for review.

Mr. J. A. Townsend (by whom the case of Bronson v. Rodes had been elaborately and ably argued at the last term) now stated for the plaintiff in error that, as was obvious, there was no essential difference between this case and that, or Butler v. Horwitz, which had been adjudged at the same time, and he relied upon these two decisions as conclusive of the case.

The CHIEF JUSTICE delivered the judgment of this court to the effect that the questions being no other than those already fully considered and determined in the cases referred to by the counsel, this case was necessarily

REVERSED, AND WOULD BE REMANDED FOR FURTHER PROCEEDINGS.

title: Bronson v. Kimpton/Opinion of the Court


text: Talk:Bronson v. Kimpton/Opinion of the Court


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Bennet v. Fowler

APPEAL from the Circuit Court for the Northern District of Illinois.

Fowler filed a bill in that court to enjoin Bennet and others from infringing two reissued patents, No. 1870 and 1869, for improvements in hay elevators, issued February 14th, 1865. The improvements had been embraced in one, in the original patent. An analysis of the complainant, Fowler's, claims presented them thus:

No. 1870.

First Claim: In the construction of elevators for hay, the combination of the permanent pyramidal supporting frame, and the revolving cross-bar, and its braces, with a central supporting piece for allowing the cross-bar, and its braces, to turn upon the supporting frame, substantially in the manner, and for the purposes described.

Second Claim: In the construction of elevators for hay, I claim, in combination with the cross-bar revolving upon an under supporting frame, the so arranging of the sheaves, and hoisting tackle, that the weight to be raised shall be upon one end of the cross-bar, whilst the power to raise that weight is applied to the opposite end of the cross-bar, for the purpose of enabling me to use a small and compact structure that may be easily transported or moved, occupying but little space, and sufficiently rigid within itself, without the use of additional guys, braces, or other fastenings, as herein described.

Third Claim: In the construction of elevators for hay, I also claim two pyramidal frames, one placed upon the other, the under frame being upright, and the upper inverted, and the head blocks, or apices of both, so united as that the upper frame may freely turn upon, whilst it is supported by the lower frame, substantially as described.

No. 1869.

First Claim: So constructing a machine for elevating hay or other like products, that the same power employed in elevating said products, will also revolve the top of the machine while the load is being elevated, or when high enough to pass over the top of the stack, and so that it may be raised from either, or any side of the machine, and deposited on the stack at any other side, and wherever desired, substantially as described.

Second Claim: An elevator, or crane (when constructed as herein described) in combination with a device for grasping hay, or other like products, and depositing it upon a stack substantially as described.

The defendants put in an answer setting up various defences to the bill, but no proofs were taken in support of it, so that it need not be referred to more particularly. The complainant filed a replication to the answer.

When the cause was brought on for hearing no counsel appeared for the defendants. After proof of infringement, a decree was rendered for the complainant, affirming the validity of the patents and the infringement, and referring the cause to a master to take proofs of the gains and profits of the defendants for the use of the machines.

A good deal of testimony was taken before the master, on the subject of the gains and profits, counsel on both sides appearing before him. The master reported in favor of the complainant $1860. The counsel took one exception to the report, namely, that part of the allowance for profits against the defendants were for infringements of third persons. The court modified the report in this respect, and reduced the amount to $1500. A decree having been entered accordingly, the case was brought by the defendants here.

Mr. Coburn, for the appellant, contended:

1. That the court erred in affirming the validity of the two reissued patents.

2. That the machines of the defendants did not infringe the complainant's patents.

Mr. Goodwin, contra.

Mr. Justice NELSON delivered the opinion of the court.

title: Bennet v. Fowler


text: Talk:Bennet v. Fowler

title: Talk:Bennet v. Fowler


text:
Bennet v. Fowler/Opinion of the Court

An objection has been taken by counsel for the defendants that the court erred in affirming the validity of the two patents, Nos. 1869, 1870.

It may be, that if the improvements set forth in both specifications had been incorporated into one patent, the patentee taking care to protect himself as to all his improvements by proper and several claims, it would have been sufficient. It is difficult, perhaps impossible, to lay down any general rule by which to determine when a given invention or improvements shall be embraced in one, two, or more patents. Some discretion must necessarily be left on this subject to the head of the Patent Office. It is often a nice and perplexing question. It is true, in the present case both patents relate to the lifting and depositing a load of hay in a mow of a barn, or in a rick or shed. But, in No. 1870, the lifter is somewhat differently constructed, so as to adapt it specially to the stacking of hay, which, doubtless, led the office to divide the improvements, and issue separate patents. The improvements were embraced in one, in the original patent.

The counsel also objects that the machines of the defendants do not infringe the complainant's patents, but, if he had intended to contest this point, he should have introduced proof to this effect. Proof of the infringements given, that the machines made and used by the defendants were substantially like the complainant's, was sufficient, if not rebutted. Models were also produced on the argument before the court, which confirm this proof.

DECREE AFFIRMED.

title: Bennet v. Fowler/Opinion of the Court


text: Talk:Bennet v. Fowler/Opinion of the Court


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The Camanche

APPEAL from the Circuit Court for California.

The case was this:

In November, 1863, in the midst of a violent southeast gale, the ship Aquila, then but a few days in port, sunk at her moorings in deep water, alongside her wharf, in San Francisco. She had just hauled in there to discharge her cargo, consisting of the materials and armament-shot, shells, guns, ordnance, stores, &c. of the monior Camanche, which was to be constructed under contract with the government by Donahue & Ryan, who owned both the Aquila and the whole cargo sunk.

The materials, armament, &c., were valued at $400,000. Of this, $340,000 were insured by various companies, each having a certain part of the risk. This left $60,000 at the risk of Donahue & Ryan, the owners.

The Aquila had been anxiously expected at San Francisco with her cargo. Her foundering in an exposed and difficult part of the bay, made the loss of the monitor highly probable. The public mind, excited by the civil war then raging, and by fears of attacks by hostile cruisers on a harbor and city inadequately defended, was shocked by the shipwreck of the only sure means of protection provided by the government for both; and this feeling extended itself throughout the country.

Measures were promptly taken to save, if possible, the vessel and cargo. Donahue & Ryan, who owned her and the cargo, and had contracted to build the monitor, then in San Francisco, of which they were residents, made within a day or two after the Aquila sunk, an abandonment of ship and cargo to the agent of the underwriters at San Francisco.

The agent did not accept, but took vigorous measures to save the property. The government superintendent for the building of the monitor was early on the ground and was active.

The best mechanics of the city were contriving measures. A dry-dock was thought of, and plans were drafted. The first attempt actually made was by pumping out the ship. This was after full consultation. It proved unsuccessful. The next attempt was to lift the ship by chains under her bottom. Different modes of getting these under were tried by divers: by blowing a hole underneath, &c.; all in vain. This attempt, like the other, was abandoned.

These efforts were continued several weeks, at a cost to the underwriters of $38,000 in gold, but were finally given up. Ryan, one of the contractors, bore a leading part in these operations; had charge of the pumping process, and received $1000 for his services.

In this juncture, the efforts at San Francisco having proved abortive, a company called the Coast Wrecking Company, agreed at New York, with the underwriters, to undertake the recovery of the materials of the monitor.

The peculiar character of this company, and their agreement in the case-matters, both of them, much discussed in the argument must here be stated.

The company was an incorporated stock company, incorporated by the legislature of the State of New York, and invested by their charter with authority to hire or own vessels manned and equipped, to be employed in towing, aiding, protecting, and saving vessels and their cargoes wrecked or in distress, whenever such wrecks or distress occur, and to receive compensation or salvage for such services in like manner as private persons, and entitled to like liens and remedies.

The location of the company was in the city of New York, and its chief business was with the cruising grounds of the large Eastern ports. Its business of wrecking or salvage was conducted exclusively by vessels, equipments, and materials supplied and paid for out of the corporate funds; and the officers and men executing the work done, did not participate in the losses or gains springing out of the services rendered on the occasion of their employment; but, of whatever rank and position, were paid by the corporation, and out of its funds, as in cases of pure contracts of hiring.

The company was in the habit of paying to its agents and servants who were engaged in services of difficulty or danger, a rate of wages or salary proportionately high, and in case of injury to any of them while so engaged, its practice was to take care of them till they recovered, and in case of their death, to take care of their families, and to place them or their families, as the case might be, in a position to earn a livelihood. It also paid the medical bills of men hurt in its employment.

The rate of wages paid was high in proportion, and above pay for mere work and labor. Merritt's (the captain) salary was $4500 a year, with primage (for the service in this case, about $1500 to $2000), besides all expenses paid. His assistant had $1200 a year, and $500 primage. He and the others who went out with the expedition had all their expenses paid from the time they left New York until they returned. The principal divers averaged $13 a day, for the same time out and back; their day's work being four hours; besides expenses paid. The divers regularly employed by the company were on half pay while not engaged in service.

The agreement which the company made, was between itself and different insurance companies who had taken risks on the cargo, to raise it for $110,000, to be paid by the companies, each in proportion to its interest in the $400,000 valuation, insured; the Wrecking Company agreeing to complete the work in ten months, with a proviso, however, that if not completed in that time, the company should forfeit ten per cent.; and, also, that if there was no substantial recovery, the Wrecking Company should receive nothing. The proviso as to time was made because a cargo of the nature that this was, would, as to part of it, be injured by remaining long in water.

The agreement being made, the Wrecking Company promptly despatched to San Francisco a party of men, divers and wreckers, specially selected from New York, Boston, and Providence, and fully provided with suitable apparatus and machinery; the whole under the command of Captain Merritt, the company's general superintendent, a man of twenty years' experience, and of admitted skill in his calling.

The expedition left New York, December 24th, 1863, and arrived in San Francisco, January 17th, 1864. Captain Merritt on the 23d of January received possession of the wreck, and on the 25th of January, after examination and study as to the best plan, began operations.

The winter had just begun, and there was reason to expect cold and stormy weather. The ship, as she lay, was exposed to the southeast gales of the season, one of which had sunk her, with the rake of the bay for thirty miles, and to its currents. She lay ten feet from the wharf, with a list to starboard (off-shore) of forty-five degrees; pitched by the head at thirty to thirty-two degrees. Her forward part, for one-third of her length, projected beyond the end of the wharf, with the bow exposed to the force of the tides and currents. Her bow was sunk in forty-eight to fifty feet of water; her stern in about nineteen feet. At low water about one-sixteenth of her deck was out of water; at high water she was submerged, except a space on one side, close astern. In effect she was at the bottom of the bay, and at such angles of inclination fore and aft, and from side to side, as to make it, independent of the depth of water and the darkness, somewhat difficult to stand on her decks, and even more difficult to work at getting out her cargo. Besides, she rested on a rocky bottom, shelving off shore; making her liable, if her fasts should part at any time, to slip off into deeper water.

Besides the difficulties of the ship's position, the cargo was perplexing in its character and in its stowage.

The materials of the monitor comprised a great number of iron pieces, from twenty-six tons to one hundred pounds in weight. The frame was of angle-iron, long, crooked pieces, very difficult to handle. Floor timbers, also of iron, were of irregular shape, and some very heavy and long. There were two main engines for propelling the monitor, and eight smaller engines. The guns weighed twenty-two tons each, and there was a number of shot and shell. The guns, as well as the other heavy pieces, as ex. gr., the pilot-house, twenty-six tons, were liable, in the progress of loosening and getting out the cargo, to break away and do great damage. There were also a multitude of construction tools, machinery for a machine shop, and small pieces, bolts, rivets, &c., by thousands. The weight of the whole was fourteen hundred tons.

By reason of the very unusual nature, construction, value, and weight of the cargo, and to keep it from shifting, extraordinary means and care had been used in the stowage of it. It was 'stowed down solid,' 'firmly fixed in the hold,' shored by staunchions or joists, one end resting under the deck-beams, and the other resting on the cargo or the flooring over the cargo, in such angles and positions as required, and some of them tied with braces; the whole thoroughly wedged in. The stowage was such, as in the opinion of Mr. Ryan, one of the claimants, to make it impossible to remove the cargo with divers.

After full examination, the plan adopted by Merritt and his company, was to get out the cargo by divers, as far as necessary, and then to raise the ship, lay her on the flats, and hoist out the remaining cargo. It was considered impracticable to raise the ship with the cargo in her.

The first part of the work, getting out the cargo by divers, was commenced January 28th, 1864, and by unremitting labor from early in the morning until late at night, except two and a half days stormy and Sundays, it was completed about April 20th, 1864; somewhat less than three months.

The risk of life and limb during this part of the labor, was testified to be 'great and constant.' 'The divers were obliged to work in entire darkness, and the inclination of the deck both ways, and the mud which rendered it slippery, made it impossible for them to walk, and compelled them to crawl by a line on the weather or upper side of the ship. Yet they had to follow up every piece to the hatchway. To find and hook on the pieces to be hoisted out, they had to grope their way in the dark, and feel with their hands all over each piece. This part of the operations was peculiarly dangerous. With the utmost care in breaking away the timbers which formed the stowage of the cargo, it was almost impossible to prevent the heavy pieces on the upper side of the ship from fetching away. One of the large guns, weighing twenty-two tons, fetched away in this manner. One of the long, crooked iron ribs, coming away, cut off a finger of an experienced diver, who had just hooked it on. He dived no more. Many of the pieces had sharp edges, so that if one of them had struck a diver in a vital part it must have killed him.'

In getting out the cargo the ship was necessarily a good deal injured. Holes had to be cut in her. But her value bore no comparison at all to that of the cargo.

After the cargo was got out, the raising of the ship was undertaken. The attempt was first made to get chains under her. This failed, as she rested forward so heavily on the rock that the divers, after working two days with picks, &c., could not get the chains under her. Another plan was tried, and succeeded, that of lifting her with chains fastened to the deck-beams and other parts of the ship, and hove through pontoons, with levers worked by powerful hydraulic machines, until the bow was raised from the bottom, so that chains could be introduced under her whole length. The chains were worked in the same way through the pontoons About the 20th of May, after a month's incessant work, day and night, Sundays included, the ship was raised and floated upon the flats.

Steps were then taken for pumping her out. By means of a large hole made in the mud under her, the divers stopped the leaks; the ship was pumped out by steam, the mud removed, and the remaining cargo hoisted out. Captain Merritt, with some of his men, returned to New York about the middle of June, 1864, and the last of the materials were landed July 3d. The duration of the salvage service, from the time of leaving New York until its completion, was about six months and a half, or until the return to New York, over seven months. The outlay made by the company in its work of recovering the cargo, was nearly $70,000; all of which, but $5300, was consumed in the enterprise.

The Aquila, or vessel on which the cargo had been shipped, was raised by the Wrecking Company, though the main matter to which attention was directed was the cargo, which from the character of a part of it (fine machinery and polished metal), it was indispensable to get from under the water at once, and this necessity for expedition interfering somewhat, perhaps, with the recovery of the vessel itself in the best condition, and along with the cargo.

All the insurance companies (except one which had a risk for $15,000 and had failed) paid the money which by the terms of their contract they were bound to pay; but there remained over and above their interest in the cargo, the $60,000 uninsured. For rescuing this, the Wrecking Company claimed salvage of the owners, Donahue & Co. These refused to pay. Thereupon the company filed a libel in the District Court for Northern California, to have salvage for this $60,000 saved, and for the $15,000 insured on the cargo by the broken company, and a monition issued in due form, to every one having anything to say, to come in. Donahue & Ryan answered, admitting in effect the recovery of the cargo, but denying the vast and unheard of peril, difficulty, and labor alleged; and setting up that the Wrecking Company had paid very little regard to what damage they did to the Aquila, and had seriously and lastingly injured her; without setting up, however, either as a fact of fear, that the individual men, who performed the actual labor, would make a claim for salvage. No tender of money for anybody was made.

The District Court, regarding the service as a salvage service, awarded on the two items $24,062, and the Circuit Court affirmed the decree, with interest at seven per cent. from the beginning of the suit. And from this decree the appeal came.

Mr. Ward, for the owners, appellants:

1. The libellant in this case cannot be a salvor. A salvor is one who renders personal service. In The Lively, an agent, at a seaport where a vessel had run ashore, being applied to by the master, and having hired and employed persons to unload the vessel and get her afloat, sued as a salvor. It was held that his claim could not be sustained. Dr. Lushington, giving judgment, said:

'The whole records of this court show that a claim of this description cannot be allowed. ..... If I were to sanction a claim of this description, the inevitable consequence would be this, that in every case where an accident occurred in the neighborhood of the various seaports of this country, and any agent was applied to, to hire a steamboat or hire sailors to go on board to render assistance, he would be entitled to come to this court and sue as if he were himself a salvor, he personally doing nothing to effect the salvage. I believe, over and over again, when such attempts have been made-and there have been two or three in my experience every judge of this court has set his face decidedly against them.'

In The Charlotte it was distinctly held that no claim for salvage remuneration, properly so called, can be maintained by parties not personally engaged in the service. Dr. Lushington, in giving judgment, said:

'I now come to the other point, namely, who are the salvors? Two of the persons by whom the claim is made are William and John Thomas. Why? On the ground that they had command over the boats and the command over the crews, and sent them out, but did not go themselves. Is that a salvage service? I apprehend clearly not, and that principle has been laid down. It is alluded to by Lord Stowell in The Vine, but though he merely alludes to it in that case, it is a principle which has been settled over and over again, from the earliest period of my practice in this court. The principle is this, that a party is not entitled to be considered as a salvor who stays on shore and sends his own boats and his own crews. . . . Lord Stowell laid down that in order to entitle a person to claim as salvor, he must have been personally engaged in the service; but he also laid it down that persons contributing to a salvage service by furnishing boats or other articles, should be entitled to remuneration, not as salvors, but for the use of the articles they supplied. That is the general principle, and from that principle I am not prepared, in the slightest degree, to recede.'

Decisions by district judges are, of course, of no authority here. Yet, on admiralty questions, they often deserve the highest respect. We therefore mention that in The Stratton Audley, where this very Coast Wrecking Company was the corporation spoken of, Judge Blatchford says, 'Nor can the corporation itself be a salvor. It cannot hire persons on wages and claim salvage for services rendered by those persons;' and this principle was also declared by Betts, J., in The Morning Star; Nelson, J., affirming him.

title: The Camanche


text: Talk:The Camanche

title: Talk:The Camanche