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statement and decision in writing. The presentment charged the defendant with having disposed of spirituous liquor to one James Williams, an Indian of the Nez Perces tribe, who was at the time a regular enlisted soldier in the United States army, on duty with his regiment at Ft. Walla Walla. Section 2139, Rev. St., upon which the prosecution is founded, reads as follows:
"See, 2139. No ardent spirits shall be introduced, under any pretense, into the Indian country. Every person who sells, exchanges, gives, barters, or disposes of any spirituous liquors or wine to any Indian under the charge of any Indian superintendent or agent * * shall be punishable. *
The sufficiency of the presentment is questioned on the ground that it does not allcge that the Indian to whom the liquor was furnished was at the time under charge of an Indian superintendent or agent of the United States, and it is assumed that the contrary appears by the statement that said Indian was at said time a regularly enlisted soldier of the United States army, on duty with his regiment. I hold that the words “under the charge of any Indian superintendent or agent,” were intentionally put into the statute by congress, and must be given force and effect as expressive of the leyislative will. I have repeatedly decided that it is not a crime, under this statute, to dispose of spirituous liquor to British Columbia Indians, or Indians upon whom the rights, privileges, and immunities of citizenship have been conferred by the laws of the United States; and it is my opinion now that the statute under consideration is not applicable to any case of selling or disposing of liquor to an Indian not at the time subject to the general authority and supervision given by the laws of the United States to the officers of Indian affairs. I also concede that, consistently with the maintenance of military discipline, there can be no control by officers of the department of the interior of soldiers while on duty, or during their terms of enlistment. But, when an Indian enlists in the military service, the officers of Indian affairs are only partially relieved of their charge concerning him, and but temporarily deprived of power to control his person. While he is in the army said officers continue to be charged with the duty of caring for his family and property and interests as a member of his tribe, and upon his discharge from the army their right to control him will be fully restored. I consider that the principle applicable to the case of an Indian who, by absenting himself from his home for pleasure or profit, temporarily places himself beyond the physical power of his superintendent or agent, should be applied to this case. Neither the Indians thentselves, the officers of the army who induce them to enlist, or officers of the interior department who consent to it, have any power to change the laws; and no act of either, affecting for the time being the actual situation of an Indian, can change his status from that of a ward of the nation.
That the Indian named in the presentment is under charge of an Indian superintendent or agent is a legal conclusion from the fact of his being a Indian of the Nez l'erces tribe. The facts being stated, the presentment is a sufficient pleading, although it does not state the legal conclusion.
BLAIR CAMERA CO. y. ROBEY et al.
The third claim of letters patent No. 1.59,537, issued February 9, 1875, to Stewart L. Bergstresser for a camera having a plate holder closed on all sides except the one where the picture is inserted, is void because of anticipation by letters patent No. 116,771, issued July 4, 1871, to John and Jacob Stork. In Equity. Suit by the Blair Camera Company against William H. Robey and others for infringement of a patent. Bill dismissed.
John L. S. Roberts, for complainant.
CARPENTER, District Judge. This is a bill in equity to enjoin an alleged infringement of the third claim of letters patent No. 159,537, granted February 9, 1875, to Stewart L. Bergstresser, as follows: "(3) A plate holder closed on all sides except the one where the picture is inserted, substantially as set forth.” In the plate holder shown in the patent the photographic plate is inserted through the front, and the holder has no other opening through which light could come to the sensitized plate. A plate holder exactly similar, in this regard, is shown in the letters patent No. 116,771, granted July 4, 1871, to John Stork and Jacob Stork, in which there is no opening except that through which the plate is inserted. The complainant points out that in the Stork holder the plate is drawn into the box by means of a plunger or handle passing through a hole in the back of the box, and that light may be admitted around this plunger; but the drawing annered to the patent here in suit also shows a handle for operating a flexible shutter, which handle passes through a slot in the back of the box, and around which light may be admitted. It is thus evident that such an opening is not excluded by the words "closed on all sides.” The structure described in the third claim of the Bergstresser patent is therefore fully shown in the Stork patent. The claiin is invalid, for want of novelty, and the bill must be dismissed.
PACIFIC CABLE RY. CO. v. BUTTE CITY ST. RY. CO.
Claims 2 and 3 of letters patent No. 203,249, issued May 7, 1878, to T. H. Day for il rope tramway and apparatus, are void for want of patentable invention in the conduit or tube covered thereby. In Eqnity. Suit by the Pacific Cable Railway Company against the Butte City Street Railway Company for infringement of a patent. Bill dismissed.
Wm. F. Booth and Dixon & Drennen, for complainant.
KNOWLES, District Judge. This is a suit in equity, brought for the alleged infringement of United States letters patent No. 203,249, issued May 7, 1878, to T. H. Day for rope tramway and apparatus. The patent was assigned to the complainant. The defendant is charged with infringing the second and third claims of the patent. These claims relate to the construction of the conduit, and are in the following words:
"(2) In combination with the rope channel or tube, C, built upon the surface of the ties, as shown, the gutter, B, beneath the tube and ties, substantially as herein described. (3) The rope channel or tube, C, built upon the surface of the ties, A, and provided with the gutter, B, beneath, in combination with the pulleys, T, having their journal boxes secured beneath the timbers, C, substantially as herein described."
The court is of the opinion that the conduit or tube of the Day patent cannot be said to disclose invention, and that it was not pateutable, and the bill is therefore dismissed.
MELLQUIST v. THE WASCO et al.
1. CARRIERS-WHO ARE PASSENGERS-NEGLIGENCE.
One who, after boarding a steamer, learns that a certain landing where he intends to stop is off the steamer's route, and that he must pay extra fare in order to stop there, and who declines to do so, but does not change his purpose of taking passage, is a passenger from the time he goes on board, and as such can hold the steamer responsible for negligence whereby he is injured, although he does not prepay his fare or purchase a
ticket, it being the custom for the purser to collect fares on board. 2. SAME-DEFECTIVE APPLIANCES-NEGLIGENCE OF EMPLOYES.
A passenger on a steamer, while on the stairway from the main deck to the cabin deck, was injured by the fall of a heavy lantern, caused by the breaking of a halyard by which it was being hoisted to its place. The cause of such breaking did not appear. Helil, that the injury was caused by a defect in the appliances, or by the negligence of the men in charge of the lantern, and that the steamer was liable therefor in an ac
tion in rem. 8. ADMIRALTY-VEXATIOUS ARREST-LOSS OF BUSINESS.
Damages should not be awarded to the claimants of a vessel for an injury to her business by an arrest at a point on her route far from her owner's residence, and at a time when her detention over Sunday necessarily follows, unless there is proof of malice or bad faith on the part of the libelant. The Adolph, 5 Fed. Rep. 114; Kemp v. Brown, 43 Fed.
Rep. 391; The Alex Gibson, 44 Fed. Rep. 374, followed. 4. SAME-PLEADING-SET-OFF.
The proof of such an arrest, without any foundation in the pleadings for a crossdemand or set-off, should not decrease the amount of the li. belant's recovery. In Admiralty. Suit in rem by J. A. Mellquist against the passenger steamer Wasco, to recover damages for a personal injury to libelant while a passenger, caused by negligence. Findings and de cree for the libelant.
P. P. Carroll and J. C. McFadden, for libelant.
HANFORD, District Judge. The evidence shows that the libelant, a traveling salesman, went on board of the Wasco at New Whatcom the morning of December 30, 1891. The steamer was then running as a carrier of passengers and freight, on the route from Seattle to New Whatcom via Anacortes and other intermediate places, and was about to depart on her regular trip from New Whatcom via said intermediate places to Seattle. The libelant's intention was to visit Samish, Anacortes, and La Conner during his trip, and, upon going on board, inguired if he could be landed at Samish, and was informed that Samish was off the steamer's route, and that she would go there only under a special arrangement whereby the additional cost to her would be paid. He declined to pay extra fare, but did not change his purpose of taking passage on said trip. Prepayment of fare or the purchase of a passage ticket was not exacted, it being the custom for the purser to collect fare from those on board during the time of making passages. From these facts I conclude that the libelant, from the time of going on board the steamer, was a passenger, and entitled to hold the steamer responsible for the due fulfillment of its obligations as a common carrier of passengers for hire. The steamer has a stairway leading from the forward part of her main deck to her cabin deck, and, immediately after going on board, the libelant was upon said stairway, going either from the main deck to the cabin or in the opposite direction, and while he was there the steamer's masthead light, a lantern weighing between 9 and 10 pounds, was being hoisted to its position on the mast, and, by the breaking of the halyard, it fell, striking the libelant on the scapula of his left shoulder. The blow caused severe pain, and produced a contused wound, in consequence of which the libelant was for a time disabled from attending to his business, and incurred expense for medical treatment. The injury, however, was not dangerous in character, nor permanent. The testimony fails to disclose the cause of the accident, but it could not have happened if the halyard and appliances for suspending the light had been sound, of sufficient strength and proper construction, and there had been no negligence on the part of the officers and men employed on the steamer in the performance of their duties in connection with said light.
A carrier of passengers is, in law, bound to exercise a high degree of care for the safety of travelers, and any failure to provide sound equipments and appliances of sufficient strength and proper construction, or to exercise due care in the use thereof, is such negligence as will entitle a passenger who may suffer an injury in consequence thereof to damages; and an injury to a passenger on board a passenger ship, happening in consequence of negligence on the part of the owner, officers, or mariners of the vessel, is both a breach of the contract for transportation, and a tort, entitling the injured passenger to compensation and to a lien therefor upon the vessel. The City of Panama, 101 U. S. 462. The question in the case most difficult to decide is as to the amount which will be fair compensation to the libelant. He complains of severe and protracted suffering, and pretends that his injury is permanent. The only evidence in the case to corroborate the libelant's testimony is that of his wife, physicians employed by him, and a few of his friends, whose testimony, however, is in most respects a mere repetition of his own complainings and statements regarding his sufferings and injuries, with the addition of their opinions as to the genuineness and truth of the statements which he has made to them of his suffering and consequent disability to work since the happening of the injury. His attempt has been to show to the court that in consequence of the injury his body is de formed, so that his shoulders are not of the same height; that he has lost entirely the use of his left arm and hand; that he constantly suffers severe pain in his left shoulder and chest; that his lungs are affected; and that he is so entirely disabled as to be unable to remove his coat or change his clothing without assistance. In my opinion, this attempt is a failure. There are many indications that the case has been overdone, and that the libelant is trying to magnify a comparatively trifling injury into a serious and permanent disability, for the purpose of unjustly extorting a large sum as his damages. The evidence was taken six months after the happening of the injury, and if the libelant had during that time been wholly deprived of the use of his arm, as he pretends, the fact could be proved by more reliable evidence than his own statements. The softening of the muscles and wasting of the arm itself would, if the facts are as the libelant represents, give physical and positive evidence of such facts. The physical appearances, as shown by the testimony of three reputable physicians, who examined the libelant in the month of July, are as follows: There is but a slight difference in the measurements of the libelant's two arms. The muscles of the left arm are firm, having no appearance of atrophy. That the libelant can raise, extend, and bend his left arm, and make all the movements of which a left arm in its normal condition is ordinarily capable. His right and left lungs are equally sound, and there is no indication of any localized ailment about his shoulder, spine, or chest, and no apparent cause or necessity for the drooping position in which he carries his left shoulder, as testified to by his witnesses. Two of the physicians who examined him testified that, in their opinion, the libelant has at times since the injury feigned pains and disabilities, in the presence of others, for the mere purpose of manufacturing evidence to enhance his damages in this case, and in that opinion I concur. It is now nearly six months since the eri. dence was taken, and a physical examination of the libelant at this time would go far towards confirming or contradicting his assertions in regard to his injuries and disabilities made in July; and if he can show, by submitting to such examination, that my opinion is erroneous, an opportunity will be afforded him for so doing, before I sign the decree. As the facts now appear from the evidence, I consider that the sum of $150 will reasonably and sufficiently compensate the libel. ant for the injury actually sustained, and award him that sum, with costs.