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25 N. E. 612, 134 Ill. 228, 10 L. R. A. 383, 23 Am. St. Rep. 661, affirming (App. 1889) 33 Ill. App. 178.

[f] (I11. Sup. 1890) Where a certificate issued under said by-law uses the words "act or occupation classed as more hazardous," instead of the languiage 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 y. Frohard, 25 N. E. 62, 134 Ill. 228, 10 L. R. A. 383, 23 Am. St. Rep. 661.

[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, 12 Il. 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 III. 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 be 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 enployed 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 Jion. 196, 10 L. R. A. 444.

[0] (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 was 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, 81.

[g] (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.-Seatie 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 occupati 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 hearing. 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 de

murra ble. 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,

opinion filed in July, 1901 (110 Fed. 30), and by the mandate the injunction was dissolved, and the case was remanded to the circuit court, with instructions to dismiss the bill. It seems, however, that pending this appeal, and before citation issued or served, before the record was filed in this court, the court below, on application of complainant, had permitted an amended supplemental bill to be filed. The petition for leave to file this amended supplemental bill was filed October 17, 1900, whilst the court had the question as to the injunction on the original bill under consideration. On December 3, 1900, leave was given to file the amended supplemental bill after argument by counsel on both sides. The supplemental bill was filed December 7th fo lowing. The defendant filed demurrer to the whole bill January 7, 1901. This was set down for argument, and in the order it was provided that, as soon as the deniurrer shall have been passed upon, the defendant shall have leave to plead or answer thereto, as he may be advised, in accordance with the equity rules. On March 23, Igor, argument was had on the demurrer, and it was overruled. Thereupon, by leave of the court, the defendant filed its answer. The complainant thereupon moved the court for a temporary injunction on the prayers of his bill. The court on the same day granted the motion so far as the fifth prayer. was concerned, to wit, restraining the defendant from prosecuting an action at law brought by it against the complainant in the circuit court of the United States for the Southern district of New York, praying damages against him for breach of the contract, the subject matter of this suit in equity. A decision upon the other prayers of the complainant was reserved. Thereupon the defendant was allowed an appeal on May 4, 1901, on assignments of error filed that day, and the case is here.

In advance of the discussion of the assignments of error, the defendant in the court below (appellant here) contends that the dismissal of the original bill carries with it t!le dismissal of this amended and supplemental bill. As has been said, nothing appeared on the record, and no mention was made in the argument of the first case, of the leave to file a supplemental bill and the orders thereon immediately following the decree appealed from, all filed before that appeal was finally completed. If such facts had appeared, it is more than probable that this court would have postponed the hearing of the appeal. The question now is, does this dismissal of the original bill operate as a dismissal of all proceedings subsequent to the date of the order appealed from in the first case? The motion for leave to file an amended and supplemental bill was an admission by complainant that the original bill was defective in important particulars, and the action of the court in granting leave to file the amended and supplemental bill was a recognition of this position. So, when the cause was heard here, it was not the case made below, but on a condition of the case admitted on all sides to be defective, and with its defects cured so far as the court below was concerned. Apart from any authority, it wouid seem that on principle the decision of this court upon a defective presentation of the case should not be conclusive of it in all respects. An amended bill is a continuation of the original bili, and forms a part of it. The original and amended bills constitute one pleading and

| 49 C. O. A, 99.

one record. i Daniell, Ch. Pl. & Prac. p. 402, c. 6, § 7.

If they constitute one record, then everything in the amended bill and supplemental bill has as much claim upon the attention of the court as anything in the original bill. The real record is the amended and supplemental bill with the original bill, and they, amalgamated, constitute the case of complainant. In other words, the court no longer looks into the original bill to ascertain the character of relief sought, but to the new record, made up of the original and the amended and supplemental bills, and deals exclusively with that. This is shown by the illustration Mr. Daniell gives to the rule just quoted from him. "When,” says he, “an original bill has been fully answered, and amendments are afterwards made, to which defendant does not answer, the whole record may be taken pro confesso generally, and an order to take the bill pro confesso as to the amendments only will be irregular.” Daniell's doctrine on this subject is followed in French v. Hay, 22 Wall. 246, 22 L. Ed. 854; Phosphate Co. v. Brown, 20 C. C. A. 428, 74 Fed. 323, 42 U. S. App. 57; Miller v. McIntyre, 6 Pet. 62, 8 L. Ed. 320. It is clear that at the time these parties were heard in this court upon the original bill the controversy between them was no longer presented by the original bill, but was contained in a record made up of the original bill and the amended and supplemental bills. So the dismissal of the original bill did not work a dismissal of the controversy.

The case before this court now has not gone to final judgment. It comes up on an interlocutory order, the granting of an injunction. If the court below had jurisdiction of the cause appearing in this record, the only question which we can consider is, was the temporary injunction providently issued? The gravamen of the new record made in the amalgamation of the original and amended and supplemental bills is a contract between the complainant and the defendant, whereby the defendant, being in control of the manufacture and sale of all gramophones and gramophone goods under the Berliner patent, contracted with the complainant to give him the exclusive agency for the sale of such goods in nearly every part of the United States, he fulfilling certain covenants on his part; that, this agreement being in existence, the defendant had entered into a conspiracy with another corporation and certain persons, whereby all control of the patented articles was put out of its power, so that it could not fulfill any of the terms of its contract, and to this end it has served on complainant a notice of cancellation of the contract, which, however, is entirely insufficient both in law and equity, and not in conformance to or in compliance with the terms of the contract; and in pursuance of the same purpose, and carrying out its conspiracy with the United States Gramophone Company, from whom defendant derives its rights in said gramophone invention, the last-named company has declared its contract with defendant company canceled, which notice, however, is collusive and fraudulent, and intended to operate to the prejudice of complainant, not properly given and not justified by the terms of the contract; and that this United States Gramophone Company and the other parties in the conspiracy are without the jurisdiction of the court; that this action on the part of defendant renders it insolvent, and deprives the complainant of all hope of relief. It, in effect, delays, hinders, and defeats

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