THE CHICAGO.

THE ALVENA.

ATLAS S. S. CO. v. THE CHICAGO.

PENNSYLVANIA R. CO. v. THE ALVENA

(Circuit Court of Appeals, Second Circuit. February 1, 1897.)

COLLISION-FERRYBOAT-TUG AND Tow.

Appeal from the District Court of the United States for the Southern District of New York. See 78 Fed. 819.

Chas. C. Burlingham, for the tugs.

Everett P. Wheeler, for Atlas S. S. Co.

Henry G. Ward, for Pennsylvania R. Co.

Before WALLACE and LACOMBE, Circuit Judges.

PER CURIAM. In these cases the fundamental questions are the distance of the Alvena and tugs from the piers, and the rate of speed of the ferryboat. Upon the evidence contained in the record, much of which was put in in the presence of the district judge, we concur in his conclusion that the collision was occasioned solely by the fault of the tugs in towing the Alvena so near to the slip of the ferryboat that the latter, when about to leave the slip, on discovering the tug was unable to avoid collision by the exercise of reasonable care..

FIDELITY & CASUALTY CO. v. RANDOLPH. STANDARD L. & ACC. INS. CO. v. SAME. PREFERRED ACC. INS. CO. v. SAME. UNION C. & S. CO. v. SAME.

(Circuit Court of Appeals, Sixth Circuit. February 2, 1897.)

Nos. 440-443.

ACCIDENT INSURANCE-VOLUNTARY EXPOSURE-NEGLIGENCE.

In Error to the Circuit Court of the United States for the Western District of Tennessee.

J. K. Flippin and Luke E. Wright, for plaintiffs in error.

Geo. Randolph, Samuel Holloway, and Wm. M. Randolph, for defendant in er

ror.

Before HARLAN, Circuit Justice, LURTON, Circuit Judge, and SAGE, District Judge.

1

HARLAN, Circuit Justice. These were separate actions upon accident insurance contracts. They were tried with the case of Insurance Co. v. Randolph (just decided) 78 Fed. 754. The evidence in these cases was the same as in that case.

The Fidelity & Casualty Company by its contracts insured against "bodily injuries sustained through external, violent, and accidental means," and against Ideath resulting within 90 days from such injuries independently of all other causes. But the contract did not cover (among other excepted cases) "voluntary exposure to unnecessary danger"; and “in case of injuries, fatal or otherwise, wantonly inflicted upon himself by the accused,” the measure of the company's liability was a sum equal to the premium paid.

The Standard Life & Accident Insurance Company by its contracts insured against "immediate, continuous, and total disability or death resulting from bodily injuries" caused "solely by external, violent, and accidental means." But its contracts did not cover (among other excepted cases) "intentional injury (inflicted by the insured or any other persons), voluntary overexertion,

wrestling, lifting, racing, voluntary and unnecessary exposure to danger, entering or trying to enter or leave a moving conveyance using steam as a motor (cable cars excepted), riding in or on any conveyance not provided for the transportation of passengers, or walking or being on the roadbed or bridge of any railway."

The Preferred Accident Insurance Company by its contracts insured against "immediate, continuous, and total disability or death resulting from bodily injuries," effected during the term of the insurance, "through external, violent, and accidental means.' 39 But those contracts did not cover (among other excepted cases) "intentional injury (inflicted by the insured or any other person), nor voluntary and unnecessary exposure to danger, nor wrestling, or fighting, or racing or competitive games, nor entering or leaving, or attempting to enter or leave, a moving conveyance using steam, cable, or electricity as a motor (except street cars), nor travel on any conveyance not provided for transporting passengers"; the extent of the liability for "injuries, fatal or otherwise, purposely inflicted upon the insured by himself," to be the sum paid for the insurance ticket.

The Union Casualty & Surety Company by its contracts insured against bodily injuries happening to the assured, as well as death, caused solely by external, violent, and accidental means. But the contracts did not cover (among other excepted cases) "injuries intentionally inflicted on the assured by himself or by any other person, not being an unprovoked assault," nor "voluntary exposure to avoidable danger, except where incurred in an attempt to save human life," nor "any violation of law or municipal ordinance or of the rules of any corporation, entering or trying to enter or leave a moving conveyance (other than street cars) using steam or electricity as a motive power," nor "riding in or upon a conveyance not provided for the transportation of passengers, or walking or being on the roadbed or bridge of any railway."

The defense in each of these cases was substantially the same as in the case against the Travelers' Insurance Company.

The words, "voluntary and unnecessary exposure to danger." in the contracts with the Standard Life & Accident. Insurance Company and the Preferred Accident Insurance Company, and the words, "voluntary exposure to avoidable danger," in the contract with the Union Casualty & Surety Company, mean the same as the words, "voluntary exposure to unnecessary danger," in the contracts with the Travelers' Insurance Company and Fidelity & Casualty Com

pany.

For the reasons stated in the opinion in Insurance Co. v. Randolph (just de cided), the judgment in each of these cases is affirmed.

KING v. MCCLINTOCK et al.

(Circuit Court of Appeals, Fourth Circuit. February 2, 1897.)

INJUNCTION-DISSOLUTION.

No. 184.

Appeal from the Circuit Court of the United States for the District of West Virginia.

Maynard F. Stiles, for appellant.

Z. T. Vinson, for appellees.

Before SIMONTON, Circuit Judge, and MORRIS and BRAWLEY, District Judges.

SIMONTON, Circuit Judge. This case presents precisely the same facts and the same questions as that of King v. Buskirk (just decided) 78 Fed. 233. The appellant is the same person as the appellant in that case, and the appellees were defendants in the injunction suits as well as in the action at law. The verdict of the jury was in their favor, and their motion to dissolve the injunction was based on that verdict. The decree of the circuit court is affirmed.

YPSILANTI DRESS-STAY MANUF'G CO. v. VAN VALKENBERG et al.

(Circuit Court of Appeals, Second Circuit. February 1, 1897.)

Appeal from the Circuit Court of the United States for the Northern District of New York.

Edmund Wetmore, for appellant.

C. H. Duell, for appellees.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM. Decree of circuit court (72 Fed. 277) affirmed, with costs, upon the opinion of court below.

CARTER-CRUME CO. v. BLOOMINGDALE.

(Circuit Court, S. D. New York. February 6, 1897.)

PATENTS-INFRINGEMENT ANTICIPATION.

In Equity.

Bill brought by Carter-Crume Company against Lyman G. Bloomingdale for infringement of reissue letters patent No. 10,359, issued July 24, 1883, for an improvement in manifold copying books. The defenses were: (1) Noninfringement; (2) invalidity of the reissue; (3) anticipation by prior use; and (4) lack of equity in the complaint. On motion for preliminary injunction. Granted. Charles H. Duell, for complainant.

Kerr, Curtis & Page and Benjamin Barker, Jr., for defendant.

LACOMBE, Circuit Judge. All the defenses urged here, save one, appear to have been presented before Judge Coxe. The new one is the "prior use” of a particular book now produced by C. C. Boyles. The evidence touching the authenticity of this book, and to what extent its use anticipated the patent, is of a character which may best be passed upon on final hearing. Following Judge Coxe's decision, the motion for preliminary injunction is granted; injunction not to take effect until 30 days from date, so as to give defendant, who is a user, opportunity to provide himself with noninfringing order books.

DAVIS v. CAMMEYER.

(Circuit Court, S. D. New York. January 30, 1897.)

PATENTS-PRELIMINARY INJUNCTION-DENIAL.

Motion for preliminary injunction. Suit on patent No. 242,382, dated May 31, 1881, to Michael Shuter and Abraham Davis, for "tip for insoles," and sustained on final hearing in Shuter v. Davis, 16 Fed. 564. Denied.

Edwin H. Brown, for complainant.
Philip J. O'Reilly, for defendant.

LACOMBE, Circuit Judge. The articles used in the defendant's shoes are not in all respects like those which, in the former suit, were held to be infringements of the patent. While the variances are not perhaps great, the patent is a narrow one, and the determination of the question whether these particular tips are also infringements may best be reserved for final hearing.

GOLDBERG & CO. v. UNITED STATES.

(Circuit Court, S. D. New York. February 16, 1897.)

CUSTOMS DUTIES.

TOWNSEND, District Judge (orally). The decision of the board of general appraisers, affirming the action of the collector of customs, is affirmed, under the rulings of the circuit court of appeals in Merwin v. Magone, 17 C. C. A. 361, 70 Fed. 776, U. S. v. China & Japan Trading Co., 18 C. C. A. 335, 71 Fed. 864, and Matheson & Co. v. U. S., 18 C. C. A. 143, 71 Fed. 394.

THE RESTLESS.

BURTIS V. THE RESTLESS. MOQUIN-OFFERMAN-HEISSENBUTTEL COAL CO. v. SAME. TRAHEY et al. v. SAME. RUTHER v. SAME. SEEMANN v. SAME. GUINAN et al. v. SAME. SULLIVAN v. SAME. HURLEY V. SAME.

(District Court, E. D. New York. December 2, 1896.)

ADMIRALTY-SALE OF VESSEL-LIENS UNDER STATE LAWS.
Macklin, Cushman & Adams, for Burtis and Trahey.
Peter S. Carter, for Ruther, Seemann, and Guinan.

Alexander & Ash, for Moquin-Offerman-Heissenbuttel Coal Co.
James Troy, for Sullivan and Hurley.

BENEDICT, District Judge. In this case the same questions arise as in the case of The Glen Iris, 78 Fed. 511, except that there is no claim for damage by negligent towing, and no necessity for making a rest in any of the monthly bills on that account. Let the fees of the officers of court be first paid, and then the claims for which libels had been filed within 40 days of the date of each monthly bill, with costs pro rata, if there be not enough for all.

END OF CASES IN VOL. 78.