BELL v. TENNESSEE COAL, IRON & R. CO.

(Circuit Court of Appeals, Fifth Circuit. January 31, 1919.)

No. 3236.

MASTER AND SERVANT 217(7)—MASTER'S LIABILITY FOR DEATH OF SERVANT -FOREMAN IN CHARGE OF PLACE TO WORK.

The foreman of a section of miners, whose duty it was to make and keep the place safe for them to work, assumed the risk, and there can be no recovery for his death from the falling of rock from the roof, which was under his own superintendence, and without negligence on the part of the employer.

In Error to the District Court of the United States for the Southern Division of the Northern District of Alabama; William I. Grubb, Judge.

Action at law by G. W. Bell, administrator of the estate of T. R. Bell, deceased, against the Tennessee Coal, Iron & Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Weatherly, Deedmeyer & Birch and Jere C. King, all of Birmingham, Ala., for plaintiff in error.

Percy, Benners & Burr and James Rice, all of Birmingham, Ala., for defendant in error.

Before WALKER and BATTS, Circuit Judges, and BEVERLY D. EVANS, District Judge.

BEVERLY D. EVANS, District Judge. Plaintiff's intestate was employed as hedge foreman in the mine of the defendant, and was killed by the falling of ore from the roof of the mine, while he was engaged in the work of his employment. The action is brought under the Employers' Liability Act of the state of Alabama (Code 1907, § 3910). The death of plaintiff's intestate was attributed in the several counts to a defect in the ways, works, machinery, or plant of the defendant, and to the negligence of the superintendent of the mine, the mie captain, and the barman in allowing the ore to fall from the roof of the mine on plaintiff's intestate, inflicting a mortal injury. The court gave a peremptory instruction to the jury, that if they believed the evidence to return a verdict for the defendant.

The evidence disclosed that the defendant company was engaged in mining iron ore. Plaintiff's intestate was a section foreman, having under his supervision a crew of men whose business was to mine the ore. He was in charge of the upset or heading of the mine where he was killed. The workmen under his control consisted of muckers, shakers, a drillman, and a barman. If in the mining operations there should be a rock which could not be dislodged by the barman with his bar of iron, it was his duty to get the advice of the foreman, plaintiff's intestate. On the morning of the injury, and about 25 or 30 minutes before its occurrence, the superintendent of the mine, in company with the bank boss and mine captain, came up to this heading, and the roof was inspected by the bank boss in the presence of the

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plaintiff's intestate, the foreman. After the inspection was made, and they had left, the foreman's crew began to drill the face of the rock and to tear the ore down. While engaged in pulling down the ore rock, the drillman and the barman differed as to the manner of quarrying the rock, and as to the danger of the rock's falling, and sent for the foreman. The foreman made an examination, and as he started away the rock fell on him and killed him. This, in brief, is the testimony of the eyewitness, and is not contradicted by other testimony.

The plaintiff's intestate was employed to superintend the very work in which he lost his life; he was performing work which the law, by virtue of his employment, cast upon him, viz. to provide a safe place in which employés under his immediate superintendence could work. The evidence discloses no negligence on the part of the defendant's servants, and the plaintiff's intestate met his death in consequence of the risks incident to his employment. Judgment affirmed.

CLARKE et al. v. UNITED STATES.

(Circuit Court of Appeals, Third Circuit. November 20, 1918.)

CRIMINAL LAW

No. 2385.

1144(%)-REVIEW-PRESUMPTION.

Where the evidence is not in the record, the only complaint being verdict was contrary to the charge of the court, it will be assumed that proof was adduced to warrant submitting case to jury.

In Error to the District Court of the United States for the District of New Jersey; J. Warren Davis, Judge.

Criminal prosecution by the United States against Frederick H. Clarke, Henry F. Clarke, Fred J. Nagel, John A. Simpson, the Kent Motors Corporation, and the Securities Company of America. Judgment of conviction, and defendants bring error. Affirmed.

George Haldorn and W. H. K. Davey, both of New York City, for plaintiffs in error.

Archibald Palmer, of New York City, for the United States. Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges.

PER CURIAM. In the court below the defendants were jointly indicted for using the mails in pursuance of a scheme or artifice to defraud, the details of which scheme need not be here detailed. To this indictment the defendants pleaded, and the cause was tried at great length and resulted in the conviction of these defendants. From judgments imposing sentence they have sued out this writ.

A large number of witnesses were examined, the defendants were represented by competent counsel, and the case was submitted to the jury in a charge whose fairness was such that no exception was taken thereto on behalf of the defendants. Indeed, far from there being

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any complaint to the charge, the only error assigned is "that the verdict as to said defendants was contrary to the charge of the court." As the evidence has not been produced and is not before us, we must assume proof was adduced which constrained the case be submitted to the jury, and as the charge of the trial judge submitted these proofs to the jury with fairness, we cannot find any assigned error which warrants a reversal.

Another matter we refer to, lest by our silence it might be supposed we had not considered the same. That is the admission in evidence of a letter written to F. S. Nagel, dated January 29, 1917. It suffices to say that, although the admission of such letter was not assigned for error, we have, by virtue of the right provided for in our own rules, examined the question of its admission with the same force and effect as though before us on a timely exception and a due assignment, with the result that we find its admission involved no error which would justify the reversal of this judgment.

Satisfied as we are that the defendants had an impartial trial, we affirm the judgment of sentence entered by the court below.

PRATHER v. DUDLEY.

(Circuit Court of Appeals, Fifth Circuit. November 8, 1918.)

No. 3175.

COMPROMISE AND SETTLEMENT 22-PLEADING.

In action on note given to bank, answer pleading set-off of balance due defendant as depositor contained allegations as to note being given for money borrowed while defendant had a balance, but while his passbook was with the bank to be balanced. Held not to show that dispute as to state of account was closed by giving note.

In Error to the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge.

Action by N. M. Dudley, receiver, against W. S. Prather. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Robert L. Berner, of Macon, Ga., for plaintiff in error.

W. A. Dodson, of Americus, Ga., for defendant in error.
Before PARDEE, WALKER, and BATTS, Circuit Judges.

BATTS, Circuit Judge. The receiver of the Americus National Bank sued plaintiff in error upon a note. The defendant, answering, admitted the execution of the note, but pleaded as a set-off a balance due him as a depositor. Objection being made that the plea was indefinite, he amended, giving the dates and amounts of deposits, and the dates and amounts of checks paid by the bank, showing a balance due him in excess of the note. Allegations were also made to the effect that, prior to the execution of the note, he had delivered his passbook to the bank to have it balanced; that the book had

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not been returned; that, while he had a balance due him, he at the time needed money to pay off a note given for the purchase money of his home, and that it was agreed that he should give his note for the sum borrowed; and that the question as to his deposit should remain open until his account could be properly balanced.

In sustaining a plea to strike the answer, the court, in the opinion filed, states that the defendant's account was in dispute, and that "this dispute, in the absence of fraud, accident, or mistake, was closed by the defendant giving this note." There is nothing in the pleading to suggest that the execution of the note had, or was intended to have, the effect of determining any matter in controversy between the bank and its depositor. The defendant acknowledges liability upon the note, and the plea is in no sense an effort to vary the note, or any other written instrument. According to the allegations of the answer, the amount due to defendant as a depositor remained at that time undetermined. He now specifically pleads deposits made by him and checks drawn by him, and no reason appears why the claim asserted should not be submitted to a jury. The plea was improperly stricken, and the case is remanded for action in conformity herewith. Reversed.

STAFFORD CO. v. DRAPER CORPORATION.

(Circuit Court of Appeals, First Circuit. November 21, 1918.)

1. PATENTS

No. 1353.

328-VALIDITY-NOVELTY-ANTICIPATION.

The Roper patent, No. 821,123, for an improvement in filling-exhaustion-indicating mechanism for detecting and indicating substantial exhaustion of the filling in the running shuttle, and thereupon to cause either automatic loom stoppage or automatic replenishment of the shuttle, etc., held valid, not being anticipated, and showing utility and novelty. 2. PATENTS

328-INFRINGEMENT.

The Roper patent, No. 821,123, for an improvement in filling-exhaustionindicating mechanism for detecting and indicating substantial exhaustion in the running shuttle, etc., held not infringed as to claims 1 and 9 by defendant's device, intended to serve the same end.

Appeal from the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge.

Bill by the Draper Corporation against the Stafford Company. From an interlocutory decree for plaintiff, defendant appeals. Decree vacated, and case remanded, with directions.

See, also, 255 Fed. 556, C. C. A. —.

Melville Church, of Washington, D. C. (Nathan B. Day, of Boston, Mass., on the brief), for appellant.

W. K. Richardson, of Boston, Mass. (J. L. Stackpole, of Boston, Mass., on the brief), for appellee.

Before BINGHAM and JOHNSON, Circuit Judges, and BROWN, District Judge.

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BINGHAM, Circuit Judge. This is an appeal from an interlocutory decree in favor of the plaintiff relating to United States letters patent, No. 821,123, granted to C. F. Roper, May 22, 1906. The defenses are anticipation and noninfringement. It was found in the court below that claims 1 and 9 of the patent were valid and infringed, and that claims 12, 13, and 18 were invalid, not being sufficiently definite. The present appeal of the defendant is from so much of the interlocutory decree as held claims 1 and 9 valid and infringed. No appeal was taken by the plaintiff from the interlocutory decree as to claims 12, 13, and 18.

[1] The plaintiff's patent is for an improvement in filling-exhaustion-indicating mechanism "for detecting and indicating substantial exhaustion of the filling in the running shuttle, and thereupon to cause either automatic loom stoppage or automatic replenishment of the shuttle without stoppage."

In the hearing before us only one of the prior art devices relied upon in the court below was urged in opposition to the finding of validity; that device is shown in United States letters patent No. 698,579, granted to W. I. Stimpson, April 29, 1902. It is true, as the defendant contends, that the feeler members of this device are brought in contact with the filling or the filling and its carrier on each alternate beat of the lay, the same as is the case in the plaintiff's device; but the distinction between the two devices lies in the respective means provided and their mode of operation for effecting a change in the filling mechanism. In the plaintiff's device one of the feelers is pointed, so that it sinks into or penetrates the filling, when there is filling on the bobbin, which feature is essential to the working of the device; while in that of Stimpson, although one of the feelers is narrower than the other, it is not pointed, and its mode of operation is not dependent upon its possessing a penetrative capacity. On the contrary, such capacity would seem to be detrimental to its operation. Then, again, the operation of the plaintiff's feelers is dependent upon the softness or penetrability of the filling mass, as compared with the harder material of which the bobbin is composed, a feature in no way material in the operation of the Stimpson mechanism. In the plaintiff's device, when the filling on the bobbin has become so reduced as to exert no pressure upon the impinging member, the penetrating member then contacts with the hard surface of the bobbin, both members are moved forward in unison, and the change is effected; while in the device of Stimpson the change is effected only when one of the feeler members is moved forward relatively a predetermined distance by an annular enlargement on the barrel of the bobbin, which is so located with reference to one of the feeler members as to effect this result when the filling has been sufficiently exhausted to permit it.

In the court below it was found that the "patented device effects in operation a substantial saving, by diminishing the amount of the filling left on the carrier at each loom stoppage or replenishment, to an extent not attainable by any prior mechanical exhaustion-indicating device. It embodies therefore a useful improvement, and one which I also find to have been patentably new, notwithstanding that it was.