he was then a slave taker, avoids the policy, though his death was not caused by anything connected with slave taking.-Hartman v. Insurance Co., 21 Pa. 466.

[q] (Pa. Sup. 1853) The occupation of the insured, which his duty required him to disclose, was that in which he was engaged at the time he made his application.-Hartman v. Insurance Co., 21 Pa. 466.

[r] (Pa. Sup. 1882) To an inquiry as to the occupation of an applicant for life insurance, he made answer that he was a laborer. As a matter of fact, he had not labored for several years. Held, that the answer was misleading and avoided the policy.-Society v. White, 100 Pa. 12, 12 Wkly. Notes Cas. 147.

[s] (Vt. Sup. 1897) An applicant for life insurance was not "engaged" in the sale of alcoholic beverages, though, as servant in a hotel, he was occacasionally called upon to serve liquor to guests.-Guiltinan v. Insurance Co., 38 Atl. 315, 69 Vt. 469.

[t] (Wis. Sup. 1895) A misrepresentation by insured in his application for accident insurance as to his occupation, on the truthfulness of which representations the policy is conditioned, avoids the policy.-Murphey v. Association, 62 N. W. 1057, 90 Wis. 206.

2. Change in Occupation.

[a] (Ill. App. 1892) Temporary attendance at a state fair in the capacity of superintendent of police, without compensation, is not a change of avocation, within the meaning of an accident insurance policy, exempting the company from liability for injuries sustained in a more hazardous employment than that stated in the policy.-Association v. Kelsey, 46 Ill. App. 371.

[b] (Iowa Sup. 1891) A mutual benefit certificate made the articles of incorporation part thereof. An article prescribed as a prerequisite to eligibility that the applicant should not be engaged in "any extrahazardous business." A by-law declared that members might engage in any lawful occupation not extrahazardous, and specified certain employments as extrahazardous, among them that of car coupler. Assured became a member while a car sealer, but afterwards became a car coupler, in which capacity he received an injury resulting in death. Held that, as he was eligible, and became a full member by the issuance of the certificate, his subsequent change of occupation did not work a forfeiture.-Hobbs v. Association, 47 N. W. 983, 82 Iowa, 107, 11 L. R. A. 299, 31 Am. St. Rep. 466.

[c] (Ky. App. 1887) Where an applicant stated his occupation to be that of a machinist and railroader, and it was so written down in the application, the fact that the applicant agreed to strike out the word "railroader" is not a defense to an action on the policy, since it is not equivalent to an agreement not to act as a brakeman on the road, and the striking out of the word "railroader" could not have taken away the knowledge of the company that the applicant was acting as a brakeman.-Association v. Hickman, 5 S. W. 565.

[d] (Mo. App. 1890) The applying for a license as a dramshop keeper is a petitioning for the establishment of a saloon for the sale of intoxicants, within such terms as used in a certificate of membership to a temperance benefit society.-State ex rel. Young v. Temperance Benev. Ass'n, 42 Mo. App. 485.

[e] (N. J. Sup. 1871) A stipulation, in a policy of insurance against accidents, that the assured shall not change his occupation without notice to the company, applies only to cases in which the assured abandons his then occupation and engages in another employment as his usual business; hence it was no breach of such a condition that the assured, who was a teacher, and so described in the policy, occupied himself, while out of professional employment, in superintending the erection of a couple of buildings de signed for his own use. Such superintending did not make him a builder. -Stone's Adm'rs v. Casualty Co., 34 N. J. Law, 371.

[f] (Pa. Sup. 1871) In an application for an "accident" insurance, the assured stated his occupation to be an "earthenware manufacturer." Held, that proof that while on a visit to a farm he had assisted in loading hay,

and there received his death injury, was not evidence of a change of occupation, within the meaning of the policy.-Insurance Co. v. Burroughs, 69 Pa. 43, 8 Am. Rep. 212.

3. Estoppel to Object to Occupation.

[a] (U. S. C. C. A. 1893) A classification of the applicant's occupation by a general agent of the company, who has been fully informed as to the facts, is binding on the company.-(Neb.) Insurance Co. v. Snowden, 7 C. C. A. 264, 58 Fed. 342, 12 U. S. App. 704; (Iowa) Insurance Co. v. Robison, 7 C. C. A. 444, 58 Fed. 723, 22 L. R. A. 325; (Mo.) Insurance Co. v. Clayton, 8 C. C. A. 213, 59 Fed. 559, 19 U. S. App. 304.

[b] (Ky. Super. Ct. 1889) Where a life policy stipulates that it shall be void if the insured shall be engaged in a particular business, it becomes void if the condition is broken, though the company knew the insured was engaged in the prohibited business at the time he made the application; and no implication arises that the company consented to his continuing in that employment.--Wright's Adm'r v. Insurance Co., 11 Ky. Law Rep. 519.

[c] (Mich. Sup. 1896) Where an applicant for accident insurance has truthfully described his calling, and all the facts concerning his business are known by the insurance company, the fact that the assured was improperly classified is no bar to his recovery on the policy.-Emlaw v. Insurance Co., 66 N. W. 469, 108 Mich. 554.

4. Cause of Loss.

[a] (U. S. C. C., Minn., 1889) The occupation of a wood chopper being classed as more hazardous than that of a stationary engineer, in which latter class deceased was insured, and he having been fatally injured while chopping firewood for his own use, the question for the jury is whether he was injured while performing an act peculiarly embraced in the occupation of a wood chopper, and not in that of a stationary engineer, and not simply whether he was engaged temporarily in an occupation more hazardous than that of a stationary engineer.-Eggenberger v. Association, 41 Fed. 172.

[b] (Ala. Sup. 1891) The fact that a policy insures a person with reference to a particular employment, and provides that the insurer shall be exempt from liability for injuries resulting from a violation of the rules of the employment, does not impose on the insurer the duty of informing the assured as to the existence of such rules, but the assured is bound to inform himself.-Insurance Co. v. Jones, 10 South. 530, 94 Ala. 434.

[c] (Cal. Sup. 1898) A proviso of an accident insurance policy that the insurer shall not be liable "if the insured is injured in any occupation or exposure classed by this company as more hazardous than that here given" refers to classes of occupation, and not to particular acts not embraced in the occupation given, and hence does not defeat recovery for the accidental death of one insured as a mining expert while casually riding on a locomotive.-Berliner v. Insurance Co., 53 Pac. 918, 121 Cal. 458, 41 L. R. A. 467, 66 Am. St. Rep. 49.

* * *

[d] (Cal. Sup. 1898) Under a clause of an accident insurance policy providing for payment of double the specified benefit should the insured be injured or killed "while riding as a passenger in any passenger conveyance using steam as a motive power," the beneficiary may recover for the death of insured, who, on invitation of the railroad superintendent, left a railway passenger coach in which he was a passenger, and rode on the engine, and, while so riding, was injured, and died; since he did not thereby lose the character of a passenger.-Berliner v. Insurance Co., 53 Pac. 918, 121 Cal. 458, 41 L. R. A. 467, 66 Am. St. Rep. 49.

[e] (Ill. Sup. 1890) A by-law providing that "any member receiving an injury while engaged temporarily, or otherwise, in an occupation more hazardous than the one in which he was engaged when insured," does not apply to a member insured as a merchant, who is accidentally killed while hunting, for recreation, though the occupation of hunter is classified by the association as more hazardous than that of merchant, since hunting cannot be said to be his "occupation," even temporarily.-Association v. Frohard,

25 N. E. 642, 134 Ill. 228, 10 L. R. A. 383, 23 Am. St. Rep. 664, affirming (App. 1889) 33 Ill. App. 178.

[f] (Ill. Sup. 1890) Where a certificate issued under said by-law uses the words "act or occupation classed as more hazardous," instead of the language of the by-law, but the classification made by the association is based on occupations, and not on acts, the rights of the member are the same under the certificate as under the by-law.-Association v. Frohard, 25 N. E. 642, 134 Ill. 228, 10 L. R. A. 383, 23 Am. St. Rep. 664.

[g] (Ill. App. 1891) A farmer engaged in driving posts or piles for a private bridge is not engaged in the occupation of a "pile driver" or “employé," within the meaning of an accident insurance policy declaring such an occupation more hazardous than that of a farmer.-Society v. Taylor, 42 Ill. App. 97.

[h] (Ill. App. 1891) A "supervising farmer," within the classification of an accident policy, may include one who does light physical labor, incident to keeping things in order and repair, as well as one who does no physical labor.-Society v. Taylor, 42 Ill. App. 97.

[i] (Ill. App. 1895) One who was killed by the accidental discharge of a gun while hunting was not within the exception of an accident policy providing that it should be void as to all accidents occurring in any occupation or exposure not named or incident to the occupation under which the insured became a member of the association.-Accident Co. v. Sibley, 57 Ill. App. 315.

[j] (Ky. App. 1897) The fact that plaintiff, who was insured as a "grocer, with desk and counter duties," was injured while hunting, does not deprive him of the right to recover, in the absence of anything to show that he was following the "occupation" of a hunter.-Insurance Co. v. Franklin, 43 S. W. 709, 102 Ky. 512.

[k] (Ky. App. 1901) Under a policy providing that insured should not. without the consent of the company, keep a liquor saloon, and that if he should die during or by reason of the violation of that condition only the reserve value of the policy should be paid, the fact that insured owned a half interest in a saloon at the time of his death does not limit the recovery to the reserve value of the policy, as he did not then "keep" the saloon, though he had done so up to the time he became an invalid.-Insurance Co. v. Hughes' Adm'r, 60 S. W. 850.

[1] (La. Sup. 1858) By the terms of an application for a policy of insurance it appeared that the slave whose life was insured was a laborer in a warehouse, and the policy declared that he was not to be employed in a more hazardous occupation. The slave was subsequently drowned in the Mississippi river, by falling from a plank while walking on it from a steamboat to the shore, having been sent by his master up the coast to be employed on a sugar plantation. Held, in an action on the policy, that testimony to show that the company would not have insured at the rate of the policy if it had been known that the slave would have been subject to the risk of a voyage on a steamboat was properly refused.-Summers v. Trust Co., 13 La. Ann. 504.

[m] (La. Sup. 1858) By the terms of the application for a policy of insurance it appeared that the slave whose life was insured was a laborer in a tobacco warehouse, and the policy declared that he was not to be employed in a more hazardous occupation. The slave was subsequently drowned in the Mississippi river, by falling from a plank while walking on it from a steamboat to the shore, having been sent by his master up the coast to be employed on a sugar plantation. Held, that as the slave was not lost while actually employed on the sugar plantation, and the master was not prohibited by the policy from removing the slave from New Orleans, except that he could not be taken to more southern localities, the company was liable for the loss.-Summers v. Trust Co., 13 La. Ann. 504.

[n] (Mich. Sup. 1897) A banker who, while in a sawmill to get some boards sawed for a cabinet to be used in the bank, operates a saw to cut off some pieces for handles, is not within the provision of an accident policy declaring it void as to accidents occurring when engaged in any profession, employment, or exposure not rated in the policy as a preferred occupation; he not

being engaged in sawing as a business.-Hess v. Association, 70 N. W. 460, 112 Mich. 196, 40 L. R. A. 444.

[o] (N. Y. Sup. 1888) Where a son was insured as a farmer, the fact that he was drowned while saving persons from a wreck does not exclude plaintiff, his father, from the benefit of the policy because of the provision that the benefit should not extend to death caused by "voluntary exposure to any unnecessary danger," or while employed in "wrecking," unless such occupation is "stated in the application, and permitted."-Tucker v. Insurance Co., 4 N. Y. Supp. 505, 50 Hun, 50.

[p] (N. Y. Sup. 1889) A policy stipulated that it was to be void "as to all accidents occurring in any occupation, profession, or employment or exposure not named, or incident to the occupation under which he receives membership." The insured, who stated his occupation to be that of a retired gentleman, was injured while operating a buzz saw for his own amusement. Held, that the operation of the buzz saw was not incident to the occupation or condition of a retired gentleman.-Knapp v. Association, 6 N. Y. Supp. 57, 53 Hun, 84.

[q] (N. Y. Sup. 1889) An accident insurance policy, providing for the payment of a specified sum for disability incurred while engaged in his occupation as "an iceman, proprietor," covers accidents to the insured, who is the proprietor of an ice business, while engaged in the delivery of ice, though the rules of the company provide that a proprietor may insure at a fixed rate, while one delivering ice cannot receive so large a weekly sum.-Neafie v. Indemnity Co., 8 N. Y. Supp. 202, 55 Hun, 111.

[r] (N. Y. Sup. 1894) An agreement signed by insured recited that in his application he stated his occupation as that of a "yard conductor or yard master"; that he waived all claim under the policy in the event of death, from any cause, resulting from his occupation as "said yard master"; and that the policy was issued in consideration of such waiver. Held, that no recovery could be had on the policy, if death resulted from his occupation as yard conductor; it appearing that insured, at times, acted both as yard master and yard conductor.-Moore v. Insurance Co., 26 N. Y. Supp. 1014, 75 Hun, 262.

[s] (Wis. Sup. 1897) Under an accident policy providing that, if the assured is injured by any "occupation" or "exposure" classified by the association as more hazardous than that against which he is insured, his insurance shall be so much as the premiums paid will purchase at the rates fixed for such increased hazard, where "acts" and "exposures" were not classified, but only "occupations," a particular exposure, though not a part of the occupation mentioned in the certificate, is not material to affect the liability of the insurer.--Fox v. Association, 71 N. W. 363, 96 Wis. 390.

[t] (Can. 1900) A provision, in an insurance policy on a baggageman at a railway station, that for any injury received in "any occupation or exposure" classed as more hazardous a less amount shall be recovered, does not apply to an injury received while casually coupling cars, although the occupation of a brakeman is more hazardous than that of baggageman.-McNevin v. Insurance Co., 32 Ont. 284.

(113 Fed. 750.)

BERLINER GRAMOPHONE CO. v. SEAMAN.

(Circuit Court of Appeals, Fourth Circuit. February 4, 1902.)

No. 412.

1. EQUITY-DISMISSAL OF BILL BY APPELLATE COURT-EFFECT OF PRIOR AMENDMENT.

After the granting of a preliminary injunction by a circuit court, complainant. by leave of court, filed an amended and supplemental bill. Defendant afterwards appealed from the order granting the injunction, but the record on appeal did not show the amended bill, nor was it called to the attention of the circuit court of appeals. That court, on the hear ing, ordered the dismissal of the bill. Held, that on the filing of the amended and supplemental bill such bill, together with the original bill, constituted one pleading and one record, and that the order of the appellate court, having been made upon a defective record, did not operate to dismiss the bill as amended.

2. APPEAL-Review-ALLOWING AMENDMENT OF PLEADINGS.

The granting of leave to file an amended and supplemental bill is a matter within the discretion of the court, and its action will not be reviewed in an appellate court unless there has been a gross abuse of this discretion.

3. EQUITY-GROUNDS OF JURIsdiction—SuFFICIENCY OF BILL.

A bill in equity, which alleges that the parties entered into a contract, the performance of which was to extend over a term of years, and that defendant, which is a corporation, has conspired with others to take such action as will render it impossible to perform the contract on its part, and will also render it insolvent, for the purpose of defeating the rights of complainant, states grounds for equitable relief, and is not demurrable.

4. SAME RETENTION OF JURISDICTION ACQUIRED ENJOINING ACTION AT LAW. A court of equity which has rightfully taken jurisdiction of a controversy and has all the parties before it will retain such jurisdiction to grant full relief, and may enjoin the institution and prosecution of an action at law by one of the parties in any other court involving the matters in controversy before it.

5. APPEAL APPEALABLE ORDERS-REFUSING TO DISSOLVE INJUNCTION.

Under Act Cong. June 6, 1900 (31 Stat. 660), an interlocutory order of a federal court refusing to dissolve an injunction is not appealable.

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

See 108 Fed. 714.

Wm. Gordon Robertson and Marshall McCormick (Albert B. Weimer and Frederick M. Leonard, on the briefs), for appellant. John T. Harris and Waldo G. Morse, for appellee.

Before SIMONTON, Circuit Judge, and JACKSON and PURNELL, District Judges.

SIMONTON, Circuit Judge. This case comes up again by appeal from an order of the circuit court of the United States for the Western district of Virginia granting a temporary injunction on the filing of an amended and supplemental bill. The case has been in this court on appeal from an order of the same court granting a temporary injunction upon an original bill. The appeal was heard May 18, 1901,