between the same company and the United States Gramophone Company; also an injunction against the United States Gramophone Company, and all persons acting under it, from assigning, transferring, or in any manner disposing of, alienating, or affecting, the right, title, and interest of the defendant in the patent rights transferred by and described in said contracts, and from dealing with them in any way by which they may go into the hands of any one, save subject to the rights of complainant therein; that the United States Gramophone Company be enjoined from effecting or carrying out any scheme of consolidation with the Consolidated Talking Machine Company of America or any other corporation; that it be required to produce and file with the clerk, pending the determination of the controversy in this case, all the originals of the said patents and improvements thereon, the subject of the contracts aforesaid; and for general relief.

On 4th October, 1900, upon filing the verified bill, a temporary injunction was issued, with leave to defendant, on 20 days' notice, to move to set it aside. On 5th November, 1900, the defendant gave notice of a motion to dissolve the temporary injunction, and on 6th November filed its answer to the bill. On 30th November, 1900, the motion came up for a hearing, and was postponed by the court until certain depositions could be taken by both sides. On 24th January leave was given to complainant to file a supplemental and amended bill, in which is set out in full the alleged agreement for consolidation of the two gramophone companies. It contains practically the same prayers as the original bill. To this supplemental amended bill the defendant demurred: (1) Because no cause is stated entitling complainant to the relief prayed therein. (2) Because the Consolidated Talking Machine Company of America and Charles Adamson and the Berliner Gramophone Company were necessary parties to the bill. (3) Because they are nonresidents of this district, and cannot be compelled to answer herein. (4) There seems to be a defect in this ground, which is in these words: "That there is not any person or persons or corporations who or which have or has a common interest with the said Consolidated Talking Machine Company of America, or the Berliner Gramophone Company, or Chas. Adamson, or the persons who signed the agreement of June 15, 1900, either collectively as a class or individually, whose interests in the said bill affect and who will be affected if the relief prayed for is granted." (5) Because by plaintiff's own admission he has a complete remedy against the Consolidated Talking Machine Company of America, and therefore his remedy is against that company, and not this defendant.

On 27th April, 1901, defendant moved to dissolve the injunction granted 4th October, 1900. The court did not pass on the motion, but on 15th May, 1901, entered this order: "(1) The plaintiff, Frank Seaman, shall, within fifteen days from this date, enter into a stipulation with the United States Gramophone Company, whereby he shall agree upon his part to carry out in good faith, and in all respects, all the terms, covenants, agreements, and stipulations contained in the contract of October 10, 1896, between him and the Berliner Gramophone Company; and the said United States Gramophone Company shall likewise stipulate within a like period of time to carry out and perform all the agreements, covenants, and stipulations contained in said contract, so far as the same were to be performed by the said Berliner Gramophone Company,-that is to say, the United States Gramophone Company shall take the place under said contract of the Berliner Gramophone Company, and perform the said contract just as it is provided therein to be performed by the Berliner Gramophone Company. (2) Should either the said Frank Seaman, plaintiff, or the United States Gramophone Company, defendant, within the time aforesaid, fail to enter into such stipulation, or, if entered into, fail to carry out the same in good faith, in all respects, then, and in that event, the motion to dissolve the injunction, awarded in this cause on October 10, 1900, is continued until June 12, 1901. Should said stipulation be entered into, however, this decree shall not be construed so as to relieve Frank Seaman, the plaintiff, of the performance and execution of any covenant and agreement to pay the United States Gramophone Company the royalties provided for under the contract of October 10, 1896; but, on the contrary, it is the intention of this decree to declare that said roy

alties shall be paid to the said United States Gramophone Company, if said stipulation be entered into, in the same way, and in the same amounts, as provided for in said contract. The said stipulation, if entered into, shall in no wise prejudice the rights of any of the parties to this or any other litigation, and it shall only be in force and effect until the further order of the court, and in no event longer than the end of the litigation now pending in Virginia between Frank Seaman and the Berliner Gramophone Company."

On 5th June, 1901, defendant filed its answer to the amended supplemental bill. Efforts were made to prepare the stipulations ordered by the court, but it appears by an order of 15th June, 1901, that the defendant had not signed the stipulation; whereupon the court on 15th June, 1901, directed that the United States Gramophone Company and the Berliner Gramophone Company should both sign the stipulation within 10 days. If they did not do so, the motion to dissolve the injunction would be overruled, and the same continued. On 15th June, 1901, defendant filed his petition for leave to appeal, with assignment of errors. The appeal was allowed, and the cause is here. There are 12 assignments of error, as follows: "(1) It was error to award the injunction of October 4, 1900, without notice to the defendant company. The order awarding said injunction is hereby referred to and made a part of this assignment. (2) It was error to make and enter the decree of November 30, 1900, instead of hearing the motion then submitted to dissolve the injunction, due notice of which had been given. (3) It was error to permit the plaintiff, without notice to the defendant, to file his amended and supplemental bill. (4) It was error to have overruled the demurrer of the defendant company to said amended and supplemental bill, as was done by the decree of May 15, 1901. (5) It was error to have rejected the stipulation tendered by the defendant company in pursuance of the requirements of decree of May 15, 1901, and to have required the defendant company to make another and new stipulation, as was done by the decree entered in this cause June 15, 1901. (6) It was error to make and enter the decree of May 15, 1901, and by that decree to require the parties, plaintiff and defendant, to enter into any stipulation whatsoever. (7) It was error in the decree of June 15, 1901, which put upon the defendant company the necessity of procuring the execution of the new proposed stipulation by the Berliner Gramophone Company, and it was error to enter the last order of June 15th, modifying previous orders and decrees. (8) It was error in the decree of June 15, 1901, in providing for a new stipulation, and further providing that, unless the new stipulation was executed within ten days from the date of said decree by the defendant company and the Berliner Gramophone Company, the motion to dissolve the injunction awarded October 4, 1900, should stand overruled, and the injunction continued. (9) It was error not to have sustained the motion of the defendant company to dissolve the said injunction awarded, as aforesaid, on October 4, 1900. (10) It was error to overrule the motion made by the defendant in the order of May 15, 1901, for an increase in the penalty of the injunction bond. (11) It was error to have entered any decree in this cause after the first regular term of the court held after October 4, 1900; the next regular term of the said court after October 4, 1900, being fixed by law to begin on the 10th day of January, 1901. (12) There are other errors apparent on the face of the record on account of which the appellate court will be asked to reverse the proceedings had in this cause."

Marshall McCormick (Isaac Nordlinger, on the brief), for appellant. John T. Harris and Waldo G. Morse, for appellee.

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

SIMONTON, Circuit Judge (after stating the facts as above). The record is large and confusing. It is essential, therefore, to keep in mind the question, and the only question, which presents itself to this

court under this appeal at this term. It is an appeal from an interlocutory order; and the only order from which an appeal can be taken at this stage of the case is the order of 15th June, 1901, continuing the injunction. Under the act of congress of 1900 (31 Stat. 660) appeals lie from interlocutory orders granting or continuing an injunction, provided the appeal is taken within 30 days from the entry of the order. The first temporary injunction was granted October 4, 1900. The appeal in this case was 15th June, 1901. So the first and ninth assignments of error need not be regarded.

With regard to the other assignments of error, they are directed largely to the merits of the case, and bear incidentally on the question as to continuing the temporary injunction. Was this improvidently awarded? The rule upon this subject is clearly stated in Welsbach Light Co. v. Cosmopolitan Incandescent Light Co., 43 C. C. A. 419, 104 Fed. 84, and it applies as well to the granting as to the refusing to grant an injunction.

"In determining in a given case whether the circuit court erred in refusing an injunction pending litigation, it is to be remembered that such injunction in no case is a matter of strict right. The application for it must be addressed to the sound discretion of the court. It may be granted or refused unconditionally or on terms. Upon appeal ordinarily the question is simply whether the court acted improvidently. Only when clearly erroneous will the order be reversed."

See, also, Ritter v. Ulman, 24 C. C. A. 71, 78 Fed. 222, 42 U. S. App. 263.

In the case at bar the record presented grave questions requiring careful deliberation. There were charges and counter charges. The facts were complicated, and needed full investigation. Another court of co-ordinate jurisdiction was engaged in the same investigation and examination, and had issued its temporary injunction. The case was evidently auxiliary to the case referred to pending in the Western district of Virginia, and was brought in the district of West Virginia solely because the present defendant refused to waive its privilege of trial in the district of its residence. The court below clearly was impressed with the comity due to the court in Virginia. The learned judge, who had had the widest experience, gave the case his most careful and patient examination. He came to his conclusion slowly, and not improvidently. Under all these circumstances, it seemed to him desirable that the status quo should be maintained, certainly until the main issues should be passed upon and determined in the case before the circuit court of the Western district of Virginia.

We are not prepared to say that the action of the court below in continuing the temporary injunction was improvident. Its decree is affirmed.

(114 Fed. 56.)

ETNA LIFE INS. CO. v. FRIERSON.

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

No. 988.

1. ACCIDENT INSURANCE-CONSTRUCTION OF APPLICATION.

A man being about to start for Seattle with the intention at the end of six months of going from there to Alaska on an exploring trip, applied to a soliciting agent of an insurance company for an accident policy, provided it would cover the risks incident to such trip. At the sug gestion of the agent, two applications were filled out, one for an annual and one for a six-months policy, and sent on to the general agent of the company, together with a letter from the agent, fully explaining the matter, and that the applications were to be treated as in the alternative. Each application contained a clause that, "I have not in contemplation any special journey or undertaking except as herein stated." No other reference to a journey was made in the formal application. Held, that the letter accompanying them, and which was necessary to an understanding of them, must be regarded, as the parties intended, as a part of the application itself. 2. SAME-WAIVER.

An incorporated insurance company may waive conditions which are for its benefit, notwithstanding a provision that no waiver shall be valid. unless made in a prescribed way and by certain officials. Such a provision may be itself waived, as well as any other; the question in every such case being as to whether the waiver has been made by the cor poration or one authorized to act for it in the matter.

8. SAME-WAIVER BY RECEIPT OF PREMIUM.

The receipt and retention of a premium at the "home office" of an accident insurance company, after knowledge of facts and circumstances which called upon the company to elect whether it would recall the policy or assume the risk of an extrahazardous journey contemplated by the assured, is an election to ratify the contract and continue the policy. 4. SAME.

A general agent of an accident insurance company, being fully advised by a letter accompanying an application that the applicant contemplated a journey not stated in the formal application, and desired the insurance only in case the policy would cover the risks of such journey, issued the policy, and forwarded it to the soliciting agent, who collected the premium and delivered the policy. A short time thereafter the general agent, by direction of the home office, wrote the local agent to withdraw the policy, but, the insured having gone away, this was not done, and the local agent later sent in the premium, which was received and retained by the company without objection. Held, that the company must be presumed to have been advised of all the facts shown by the letter prior to its directing the withdrawal of the policy, and that its subsequent action was a waiver of the right to invoke provisions of the formal application to avoid the policy on account of the journey. 5. SAME-CONDITIONS-BREACH.

A provision of an accident policy exempting the company from liability for injury sustained when the insured was engaged in "adventures

into wild and uninhabited or uncivilized regions" did not become operative because the insured had started on an exploring or prospecting journey into the interior of Alaska, where he was drowned in a storm while navigating a well-known bay on the seacoast, before he had entered upon the inland journey.

6. SAME-CHANGE OF OCCUPATION.

An insurance company cannot claim that an insured had changed his occupation from that stated in his application to that of a prospecting miner, which was one more hazardous, merely because he was, when he lost his life, on his way to Alaska, with the intention of engaging in such pursuit, when he had not entered upon it at the time of his death.1 7. SAME AMOUNT OF RECOVERY-PASSENGER ON STEAM VESSEL.

An insured under an accident policy which provided that, "if injured while riding as a passenger in any passenger conveyance using steam ** as a motive power the amount to be paid shall be double that above specified," with others, formed a party for the purpose of ascending an Alaskan river and prospecting for gold in its vicinity. A steamship company contracted to furnish them with transportation to the coast of Alaska in one of its steamships, and from there in a river steamer, which they were to use as a base of supplies during their explorations, the company to receive as compensation one-half the profits of the expedition. After leaving the steamship, and while passing up the bay at the mouth of the river, the river steamer was wrecked, and the insured was drowned. Held, that he was a passenger, and the beneficiary was entitled to recover double the principal sum named in the policy.

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

This was an action on a policy of accident insurance. The insured was Robert P. Frierson. The loss, in case of death, was payable to the mother of the insured, who is the defendant in error. There was a stipulation waiving a jury and submitting the case to the court. The court rendered judgment for the plaintiff upon a special finding of facts, made a part of the record.

The company presented a number of defenses, which, so far as now material, were as follows: First. That the contract was void in consequence of a false statement in the application, in which the applicant stated, “I have not in contemplation any special journey nor hazardous undertaking, except as herein stated," whereas the applicant at the time contemplated a journey to the gold fields of Alaska for the purpose of prospecting for nines, and in fact did go to Alaska during the life of the policy, and was there drowned while prosecuting the journey to the gold fields in contemplation when he applied for insurance. Second. That the deceased at the time of his death was in violation of a condition of the policy which exempts the company from liability for injury sustained when the insured is engaged in "adventures into wild and uninhabited or uncivilized regions." Third. That the insured was placed in the preferred class as a lawyer. That he changed his occupation by going to Alaska as a "prospecting miner," and thereby rendered applicable the fourth condition of the policy, which is in these words: "If the insured is injured in any occupation or exposure classed by this company higher than the premium paid for this policy covers, the sum insured and weekly indemnity shall be only such amounts as said premium will purchase at the rate fixed for such increased hazard." Fourth. The policy insures the principal sum of $5,000, but provides for the payment of double that sum if the injuries from which death ensued "are sustained while riding as a passenger in any passenger conveyance using steam, cable, or electricity as a motive power." The company denied double liability under this clause, upon the ground that he was not at the time of his death a passenger in a passenger conveyance, within the meaning of this clause. The court below held upon the law and facts that the company was estopped from making the three defenses first mentioned, and that the de

1 See note at end of case.