MISSOURI PAC. RY. CO. 'V. CHICAGO & A. RY. CO.
assured when he committed the fatal act. All testimony relating to that will have to be ruled out, though there is an immaterial issue on that point. The court regrets that all these matters were not disposed of by a demurrer to the petition, but for reasons of his own the counsel prefers this mode, which is a lawful mode. The result of it is, under M. the pleadings as they stand before the court, the assured, Biley shot himself, and death followed. That ends the case. If he did'so, no beneficiary under the policy can recover. This policy is different from a great many others where other questions are open. He chose to take out a policy in a mutual society whereby, if he killed himself, "sane or insane," no matter under what circumstances, and he chose to kill himself, no recovery could be had under the policy.
& A. By.
(Circuit Oourt, E.
November 5, 1885.)
CoMMON CARRIERS-RAILROADs-LIABILITY AS TO CARS RECEIVED FOR TRANS PORTATION.
Where a railroad company receives loaded cars from another road for trans. portation, it is liable as a common carrier in case they are destroyed en roue. by fire.
SAME--DESTRUCTION AFTER DELIVERY TO CONSIGNEE.
If destroyed by fire after delivery to the consignee, or after they have been tendered to him, the company is not liable if not in fault. In the latter case its duties are only those of 0. warehouseman.
Semble, that no implied contract to return cars arises where they are received loaded for transportation and delivery to 0. consignee.
SAME-IMPLIED CONTRACT TO RETURN CARS.
At Law. Suit for the value of a number of cars delivered in good order, loaded with grain, by plaintiff to defendant, for transportat.ion over the latter's road. The answer states as a defense that the cars were destroyed by fire without the defendant's fault after they were delivered to the consignee. Bennett Pike, Thomas J. Portis, and H. G. Herbel, for plaintiff. R. H. Kern, for defendant. TREAT, J. It appears that the course of through traffic among railroads requires each to receive cars owned by other than the transporting roaG, and forward the same; and accepting the general princi. pIe stated in Peoria ft P. U. Ry. Co. v. Chicago, R. 1. ft P. Ry. Co., 109 Ill. 135, that each road, as to said cars by it so received and forwarded to the next road, is under the obligations of a common carrier, the case before the court shows that there were 10 cars to be deliv.
Reported by Benj. F. Rex, Esq., of the St. Louis bar.
ered to the Advance elevator, and received by the defendant for that purpose. Six of these were actually delivered, and were in possession of said elevator. Four of said ten, still in actual possession of the defendant, had been tendered to said elevator, and remained in the custody of the defendant from the inability of the elevator to receive the same when so tendered. All of these cars were destroyed by fire without any fault of the defendant. As to the six cars actually delivered and so destroyed there evidently can be no recovery. The duties of the defendants as to the other four of said cars were simply those of a warehouseman. When a common carrier transports merchandise and delivers the same to the consignee, its obligations with respect thereto are at an end. If, however, the same are tendered to him, and through no fault of the carrier he does not or will not receive the same, the carrier can cause the same to be stored at the risk of the consignee, or retain possession of the same simply as a warehouseman. Were this not so, the through traffic from one part to the other of this vast country would compel not only the breaking up but stoppage of trains, if at the intermediate points of delivery the consignee failed or refused to receive consignments. In this case, if we treat the transportation of cars as if merchandise to be received and delivered to the consignee, it appears that these cars, with their contents, were delivered loaded with grain to the elevator. If both the cars and their contents are to be covered by the same rule, then the delivery of the cars with their contents terminated the obligations of the defendant. The court is not prepared to say that where a railroad car in the course of through transportation is received to be delivered to another railroad, and has been so delivered, that it is bound to cause the same to be returned, either to the owner of the car or to the railroad from which the same was originally received; nor that it is under all circumstances entitled to recover in its own name from what may subsequently happen with respect thereto. In this case, as already stated, there can be no recovery as to the 10 cars shipped to the Advance elevator. Two other cars were delivered to the defendant to be sent by it eastward, which were destroyed by the fire alluded to; the value of said cars being $602.35, $100 of the wrecked material having been received by the plaintiff. As to said two cars the obligations of a common carrier existed, consequently the defendant is liable for the sum of $502.35, for which judgment is ordered.
CELLULOID MANUF'G CO. and others v. NOYES and others. SAME v. AMERICAN ZYLONITE Co. and others.
Octoher 31, 1885.)
PATENTS FOR INVENTIONS-CELLULOID COMBS-WANT OF INVEN1'ION.
Patent No. 223,311, dated January 6, 1880, and granted to William Booth, for improvement in the manufacture of combs from celluloid and analogous material, held void.
In Equity. Frederick H. Betts, for complainants. E. B. Smith, for Noyes and others. E. M. Fett, for American Zylonite Co. COLT, J. The defendants are charged with infringement of letters patent No. 223,311, dated January 6, It:l80, granted to William Booth for improvement in the manufacture of combs from celluloid and analogous material. The device consists in the application of a stream or jet of water to or near the saw while the teeth of the comb are being cut. The claims are as follows:
(1) The process of making combs of celluloid and analogous material herein set forth, consisting in the application of a stream or jet of water to or near the saw while the teeth of the comb are being cut, snbstantially as set forth. (2) The process of making combs of celluloid or analogous material herein set forth, in which a jet or stream of w:ater is applied to or near the saw while the teeth of the comb are being cut, substantially as set forth.
The use of water upon a saw or cutting tool, to lubricate it, diminish friction and consequent heat, is old. It has been used in making combs, rings, piano keys, and numerous other articles out of ivory, mother of pearl, rubber, and other materials; and it also appears that it has been previously applied to sawing knife-handles of celluloid. In view of the well-known and common use of water upon a cutting tool, we must hold this patent void for want of invention. In dealing with a material of the character of celluloid, the use of water upon the saw would seem to suggest itself to the most ordinary mechanic. The complainants seek to uphold the patent and escape the charge of double use, on the ground that new results are accomplished by the application of this process to the manufacture of combs from celluloid. Water in the Booth process performs its usual duty of lubrication, keeping the saw cool, and preventing it from buckling, and also keeping the material cool, and preventing it from softening, so as to bend, or from catching on fire. Bearing in mind what has been accomplished by the use of a similar process, we are unable to discover, notwithstanding the skillful