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$8,500 paid out of the estate assigned lor | ing a union at g, and terminating in the the benefit of creditors, uses that payment socket, e, ils shown and described.” The to reduce the claims against this property, application was again rejected on the and, paying off the balance, repossesses ground that the amended claim did not himself of the property, now worth over possess patentable novelty in view of $35,000. We see neither equity nor law in patent No. 160,170, for shovels, issued to this conclusion, and therefore dissent. P. B. Cunningham, February 23, 1875, and

patent No. 113,805, for tool handles, issued (141 U. S. 674)

to D. G. Smith, April 18, 1871. The apMYERS V. GROOM SHOVEL Co.

plicant thereupon erased from his specifi. (December 7, 1891.)

cation the words just preceding his claim,

“Having thus described my improvement, PATENTS FOR INVENTIONS–Prior Use.

what I claim as of my invention is;" and Letters patent No. 208, 258, granted Septem

inserted in lieu thereof the following: “I ber 24, 1878, to Henry M. Myers, for an improved method of securing handles to shovels, the same

am aware that a continuous socket for consisting of two pieces of metal which inite near shovels has been nade in two pieces, and the shovel-blade, thus forming a socket, and at I am also aware that a solid sucket has the same time extending up the handle as sepa- been formed with handle_straps, but in rate straps, are void, because practically the same contra distinction to sucb I claim." The device was employed in the Ames California

application was then allowed, and the patspade, which was on sale and in general use for

ent issued. With the exception of the parmany years prior to the application of Myers.

agraph thus added by way of amend-, Appeal from the circuit court of the ment, the specification of the patent ist United States for the western district of identical with that originally filed. The Pennsylvania. Affirmed.

claim in the Barnes patent was for "a Suit by Henry M. Myers against the scoop having front and back straps form. Groom Shovel Company for infringement ing a socket for the handle, the back strap of patent. Bill dismissed, and plaintiff ap- of a separate piece from the body or bowl peals.

of the scoop, said back strap being riveted W. Bakewell, for appellant. Francis T. on the curse of the bowl and back of the Chambers, for appellee.

line of wear, substantially as and for the

purpose specified.” The method of conMr. Chief Justice FULLER delivered the struction of this shorel or scoop was the opinion of the court.

formation of a socket by two straps, beThis was a bill exhibited by Henry M. tween which the wooden handle was fit. Myers against the Groom Shovel_Com- ted in, the straps meeting on their sides, pany in the circuit court of the United forming a socket throughout their entire States for the western district of Pennsyl- length. The Smith patent was an invenvania, for infringement of letters patenttion for attaching handles to spades, No. 208,258, dated September 24, 1878, for forks, and other implements, consisting "improvement in handle sockets for shov- in a socket or tubular portion having two

els, spades, and scoops. The answer de- straps, which socket and straps received no nied that Myers was the first inventor, the wooden handle. The socket was

and set up want of novelty, public use called by the patentee a "ferrule," and the • and sale for more than two*years before claim was for the ferrule as described,

the application, anticipation, and non- combined with a ring applied to its end. infringement. The circuit court held that, The Cunningham patent described a conin view of the state of the art, if the pata struction similar to that of Smith, but the ent were within the domain of patentable shovel-blade was attached by means of a invention, it was so close to the line as to metal tongue in connection with the render it fairly disputable whether it straps. The Myers disclaimer aimed to might not be assigned to the category of differentiate the Myers claim from the products of mere mechanical skill; and Barnes continuous socket made of two that, however that might be, the inven. pieces, and the Smith and Cunningham tion was not essentially distinguishable solid socket formed with extensions or in construction from a spade known as straps, as stated therein. In the Myers the “Ames California Spade,” which was patent the wooden handle is secured to a clear anticipation of the patented device. the blade of the shovel by two straps, A decree dismissing the bill was therefore which at their parts next to the shovel. entered.

blade are bent around the handle to form The application was made April 20, 1878, a socket; the lower part of the wooden and reference to the file-wrapper and con- handle being received in the socket or tents shows that the original claim read ferrule, and the straps extending up upon as follows: “A shovel, spade, or scoop the body of tlie handle. provided with a socket and straps com- The defendant's expert Hunter, after debined and constructed in two pieces for scribing the Barnes, Smith, and Cunningattaching the bandle to the blade, sub- ham patents, testified that, these constantially as herein described and for the structions being old, the distinction upon purpose set forth.” This claim was re- which the patent of Myers is based is that jected as anticipated by patent for shovels the straps which extend up upon the body No. 186,520, issued to E. A. Barnes, Janu- of the handle must be bent around the said ary 23, 1877. It was thereupon amended handle to form a union close to the shovel. by substituting the present claim, which blade and form a socket, but in which the reads: “As an improved means of securing | remaining parts of the straps further up handles to shovels the herein-described upon the handle shall not meet upon their combined socket and straps, the same be- sides;" and, further, that “the Myers con. ing composed of the twostraps, C, D, form. struction is substantially identical with

what is shown in the Barnes patent if the then riveted to the blade, A. The straps, straps forming the socket at the upper end Cand D, may be forged and plaited with of the Barnes patent were slightly spread the blade, A. The hundle, B, is then fitted or extended with less width. It would be into the socket, e, and the straps riveted the same as the conscriction shown in the to the handle, as shown in Figs. 1 and 2. Smith and Cunningham patents if the sock- | By constructing handle straps in two ets of the said patents were split longitud- pieces of the form shown in Fig. 2, a sock. inally, as shown in the Barnes patent. et for the reception of the end of the handle The construction shown in the Barnes is formed, having the advantage of the orpatent, in which the straps form a socket dinary hundle straps combined with said throughout its entire length, is undoubt. | socket, whereby the handle is greatly edly much stronger than the Myers con- strengthened and securely attached to the struction." He concluded, therefore, that blade, A, and said combined socket and there was no particular difference between handle straps are constructed with econwhat was shown and claimed in the Myers omy of labor and material, and with great patent and what was shown in the prior facility." The drawings do not show any patents referred to. As to the Ames Cali- section of a socket within the blade. The fornia spade, he testified: “The California socket shown is formed by riveting the spade shows a construction in which the straps to the blade, and the handle does handle is secured to the blade by means of not extend below the socket created by two straps, which approach each other the union of the straps. As this California at their ends pext to the blade, and form spade is in all substantial respects the same a union, or practical union, and make a as the implement described in the Myers socket, in which the lower part of the patent, and, as appears from the evidence, handle is encased. I therefore find the said was largely made and sold between 1860 California spade to have a construction in and 1870, and had been in stock at the which the handle is secured by a socket Anies Works in Massachusetts for 15 or 20 and straps, the two straps forming a years prior to 1886, we entirely concur with union near the blade, and terminating in the circuit court, and the decrea is consea socket, substantially in the manuer and quently affirmed. for the purpose set out and claimed in the Myers patent. It will be seen from this

Mr. Justice BRADLEY and Mr. Justice that the California spade has a construc

GRAY did not hear the argument, and took tion having all the advantage of the ordi- no part in the decision of this case. nary handle straps combined with the

(142 U. S. 18) socket, whereby the handle is greatly NEW ORLEANS & N. E. R. Co. V. JOPES. strengthened and securely attached to the blade, and consequently embodies all the

(December 7, 1891.) advantages of the Myers construction. CARRIERS OP PASSENGERS-INJURY BY SERVANTThe two constructions are practically the

EXCEPTIONS TO INSTRUCTIONS. same.

1. When a railroad conductor shoots a pas. We quote thus at length from the testi

senger, under the belief, which is reasonably

warranted by the passenger's manner, attitude, mony of this witness, because, after a care.

and conduct, that an immediate assault upon him ful examination of the various exhibits in

with a deadly weapon is intended, the company evidence, we quite agree with his conclu- is not liable in damages, although in fact there sion. Counsel for appellant, referring to was no actual danger. the California spade, says: “This spade 2. A carrier is not liable in damages for an has heavy straps, which are riveted to the injury caused to a passenger by its servant un. blade of the spade at their lower ends, and

der circumstances which free the servant from

all criminal or civil responsibility. extend upward to within an inch and a

3. When a bill of exceptions sets out an in. half of the bow of the handle. They taper

struction given by the court, following it with gradually from the blade upward. They the words, “to which defendant excepted,” it do not, bowever, forni a socket, because, will be presumed that the exception was taken while they nearly meet around the wood. at the trial, and while the jury were at the bar, en handle near the blade, they are cut in although there was no explicit statement to that at that point so as to form a ferrule

effect. around the wood, but not a socket on the In error to the circuit court of the United blade.“

States for the southern district of Missis, But there is no description of any socket sippi. Reversed. in the blade in the Myers patent. The Action by Joseph H. S. Jopes against specification says: ** In the drawings, A the New Orleans & North-Eastern Rail. represents a scoop blade, wbich may be of road Company to recorer damages for an any of the known forms and constructed injury caused by a conductor in shooting of the ordinary material. B represents him while a passenger on one of its trains. the handle, which is constructed of wood. Verdict and judgment for plaiutiff. DeC and E represent the handle straps, fendant brings error. which are cut (in the form shown in Fig. The facts of the case fully appear in the 4) from sheet-iron or sheet-steel, and fur. following statement by Mr.Justice BREWpished with openings for the rivets used for ER: attaching them to the blade, A, and han- On July 24, 1886, the defendant in error dle, B. The straps, C and D, are then (plaintiff below) was a passenger on the swaged into the form necessary for the train of the plaintiff in error. While such upper and lower strap, as indicated in passenger, and at Nicholson station, in Figs. 1 and 2, so that the edges, f, f, in Fig. Hancock county, Miss., he was shot by 4, meet, as at g, in Figs. 2 and 3, forming Carlin, the conductor, and seriously in. the socket, e, (indicated in Fig. 3.) The jured. For such injury, he brought his acparts, b and i, of the straps, C and D, are tion in damages in the circuit court of

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that county. The case was regularly re har, and therefore not in time. In supmoved to the United States circuit court port of this contention several authorities for the southern district of Mississippi, and are cited. While it is doubtless true that, a trial resulted in a verdict and judgment if the exception was not taken until after on May 15, 1888, in his favor for the sum of the trial, it would be too late, and to that $9,500, to reverse which judgment the de- effect are the authorities, yet we do not fendant sued out this writ of error. of think the record shows that such was the the fact of the shooting by the conductor, *fact in this case The trial commenced on and the consequent injuries, there was no the 14th and was concluded ou the 15th, dispute. The testimony in the case was and the bill of exceptions was sealed and conflicting as to some matters, and there signed on the 16th of May. The motion was*testimony tending to show that the for a new trial was not overruled until plaintiff approached the conductor with the 26th. The bill of exceptions recites in an open knife in his band, and in a the ordinary form the coming on of the threatening manner, and that theconduct. case to trial, the impaneling of a jury, the or, fearing danger, shot and wounded | testimony offered, and the instructions the plaintiff, in order to protect himself. given and refused. In respect to one matThe bill of exceptions recited that in its ter of testimony the bill of exceptions regeneral charge the court instructed the cites: “Whereupon the court refused to jury that if the evidence showed that the allow the testimony, to which ruling the plaintiff was a passenger on the train, defendant excepted.“ So, following the and that he was shot and wounded by the recital in respect to the last matter of in. conductor whilst he was such passenger, structions, is the statement “to which deand whilst prosecuting his journey, and fendant excepted." It is true, the words Buch shooting was not a necessary self-de- used are not "then and there excepted;": fense, the plaintiff was entitled to recover neither is it said that the court" then and compensatory damages; but if the jury there instructed ;” but, as the bill pur. believe the plaintiff, when shot, was ad- | ports to be a recital of what took place on vancing on the conductor, or making hos. the trial, it is to be assumed that the intile demonstrations towards him with a structions were given, and the exceptions kuife, in such a manner as to put the con taken, during and as a part of the trial. ductor in imminent danger of his life or of The statement as to the exception follows great bodily harm, and that the conduct. that as to the instructions, and the only or shot plaintiff to protect himself, the fair and reasonable intendment from the plaintiff was not entitled to recover; but language is that, as the one was given, 80 ir it appeared that the conductor shot the the other was taken, at the trial. The plaintiff whilst such passenger and prose same form of recital was pursued in the cuting bis journey, wantonly and with case of U. S. v. Breitling, 20 How. 252, and out any provocation at the time, then the held sufficient. In the case of Barton v. jury might award exemplary damages. Forsyth, Id. 532, it appeared that after And further, that, "responding to the re the verdict and judgment the defendant quest of defendant that the court should filed a motion, supported by affidavit, instruct the jury that if they believed from which was overruled. Following the rethe evidence that when Carlin shot the cital of this fact, the record added, “To all plaintiff, he, Carlin, had reasonable cause which decisions, rulings, and instructions to believe from Jopes' manner and atti defendant then and there excepted;” and tude that he, Jopes, was about to assault it was held that such recital showed that Carlin with the knife, and that it was nec the exceptions were taken at the time of essary to shoot him to prevent great bod. | the overruling of the motion. In the case ily harm from Jopes, then that the jury of Phelps v. Mayer, 15 How. 160, the ver. should find for defendant, whether Jopes | dict was rendered on the 13th of Decemwas intending to do Carlin great bodily ber, and the next day the plaintiff came inbarm or not, the court declined to in- to court and filed his exceptions, and there struct, but instructed that, in that state was nothing to show that any exception of the case, if Carlin shot under the mis. was reserved pending the trial. In Brown taken belief from Jopes' actions that he v. Clarke, 4 How. 4, it was a matter of was in danger of great bodily harm then doubt whether the exceptions were taken about to be done him by Jopes, when in to the instructions or to the refusal to fact Jopes was not designing or inten- | grant a new trial. Of course, in the lat. tionally acting so as to indicate such de. ter case they would not have been avail. sign, the plaintiff should be entitled to able. In the case of Walton V. U. S., 9 compensatory damages, and not punitive Wheat. 651, it appeared that the exception damages." To this last instruction an ex was not taken until after the judgment. ception was taken, and this presented the *The reasoning of all these cases rcakes in substantial question for consideration. favor of the suificiency of this bill of excep

Edward Colston, for plaintiff in error. tions, and it may be laid down asa general Marcellus Green and Calderon Carlisle, for proposition that, where a bill of excepdefendant in error.

tions is signed during the term, purpurt

ing to contain a recital of what transpired *Mr. Justice BREWER, after stating the during the trial, it will be assumed that facts as above, delivered the opinion of all things therein stated took place at the the court.

trial, unless from its language the conA preliminary question is raised by trary is disclosed. We hold, therefore, counsel for the defendant in error. It is that the record shows that the exception insisted that the bill of exceptions does to this instruction was duly taken, and 226t show that this exception was taken at pass to a consideration of the principal the trial, and while the jury was at the question, and that is, whether such in.

struction contains a correct statement of the employer is a common carrier, and the the law applicable. Its import is thut, if party injured a passenger, there is an exthe conductor shot when there was in fact ception, and the proposition is laid down no actual danger, although, from the that the contract of carriage is broken, manner, attitude, and conduct of the and damages for such breach are recoverplain tiff, the former had reasonable causeable, whenever the passenger is assaulted to believe, and did believe, that an assault and injured by an employe without act. upon him with a deadly weapon was in ual necessity therefor. It is urged that teaded, and only fired to protect himself the carrier not only agrees to use all reafrom such apprehended assault, the com sonable means to prevent the passenger pany was liable for compensatory dam from suffering violence at the hands of ages. In this view of the law we think the third parties, but also engages absolutely learned court erred. It will be scarcely that his own employes shall commit no doubted that if the conductor was prose- | assault npon him. We quote from the cuted criminally, it would be a sufficient brief the contention: “The cause of acdefense that he honestly believed he was in tion was breach of the contract to carry imminent danger, and bad reasonable safely. The defense sought excuse for the ground for such belief. In other words, non-performance, in that plaintiff bad the law of self-defense justifies an act done abandoned the contract, and made an as. in honest and reasonable belief of immedi sault upon the servant of defendant, to ate danger. The familiar illustration is whos care he was committed, and that, that, if one approaches another, pointing therefore, defendant could not perform by a pistol, and indicating an intention to reason of plaintiff's own act. Under this shoot, the latter is justified by the rule of the facts must exist to excuse the breach, self-defense in shooting, even to death; not that the servant had reasonable cause and that such justification is not a voided to believe they existed, but that they exby proof that the party killed was only isted in fact. Under the criminal law, if intending a joke, and that the pistol in there is a reasonable doubt, it suffices to his hand was unloaded. Such a delense excuse, but the non-performance of condoes not rest on the actual, but on the ap. tracts cannot be excused upon beliefs. parent, facts, and the honesty of belief in Special reference is made to the case of danger. By the Revised Code of Mississip- Steam-Boat Co. v. Brockett, 121 U. S. 637, pi, (1880,) section 2878, (and this section 7 Sup. Ct. Rep. 1039, in which this court held is common to the homicide statutes of that “a common carrier undertakes ab. Beveral states,) homicide is justifiable solutely to protect its passengers against when committed in the lawful defense of the misconduct or negligence of its own the person when there shall be reasonable servants, employed in executing the conground to apprehend a design to do some tract of transportation, and acting within great personal injury, and imminent dan the general scope of their employment;” a ger of such design being accomplished. In proposition which was fortified in the I Wbart. Crim. Law, (9th Ed.) § 488, the opinion by reference to several authorities. author says: “It is conceded on all sides But it will be noticed that that which, acthat it is enough ii the danger which the cording to this decision, the carrier en. defendant seeks to a vert is apparently gages absolutely against is the misconimminent, irremediable, and actual. duct or negligence of his employe. If this Bang v. State, 60 Miss. 571; Shorter y, shooting was lawfully done, and in the People, 2 N. Y. 193; Logue v. Com., 38 Pa. just exercise of the right of self-defense, St. 265. And the same rule of immunity there was neither misconduct nor pegli. extends to civil as to criminal cases. if gence. It is not every assault by an emthe injury was done by the deiendant in plore that gives to the passenger a right of justifiable self-defense, he can neither be action against the carrier. Suppose a punished criminally, nor held responsible passenger is guilty of grossly indecent for damages in a civil action. Because language and conduct in the presence of the act way lawful, he is wholly relieved lady passengers, and the conductor forci. from responsibility for its consequences. bly removes him from their presence, there 3 Bi. Comm. 121. The case of Morris v. is no misconduct in such removal; and, if Platt, 32 Conn. 75, fully illustrates the ex only necessary force is used, pothing tent to which immunity goes. In that which gives to the party apy cause of accase it appeared that the defendant when tion against the carrier. In such a case, assaulted had fired in self-defense, and, the passenger, by his own misconduct, has missing the assailant, had wounded an broken the contract of carriage, and he Innocent by-stander, and the court held has no cause of action for injuries which that the party thus assailed was free from result to him in consequence thereof. He both civil and criminal liability. The act has voluntarily put himself in a position which le had done was lawiul, and with which casts upon the employe_both the out negligence, and no one, not even a right and duty of using force. There are third party, not an assailant, but an inno. | many authorities which in terms declare cont by-stander, could make him answer this obligation on the part of the carrier, in damages for the injury occasioned and justify the use of force by the employe, thereby.

although such force, reasonably exercised, It would seem on general principles inay have resulted in injury. But if an that, if the party who actually causes the einploye may use force to protect other injury is free from all civil and criminal passengers, so lie may to protect himself, liability therefor, his employer must also He has not forfeited his right of self-debe entitled to a like immunity. That such fense by assuming service with a common is the ordinary rule is not denied; but it carrier; nor does the common carrier en Is earnestly insisted by counsel that where gage aught-against the exercise of that:

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right by his employe. There is no mis- done by an employe has been the cause of conduct when a conductor uses force and the litigation, the defense has been, not does injury simply in self-defense; and the that the act of the employe was lawful, rules which determine what is self-defense but that it was a wanton and willful act are of universal applicatiou, and are not on his part, outside the scope of his emaffected by the character of the employ-ployment, and therefore something for ment in which the party is engaged. In- which his employer was not responsible; deed, while the courts hold that the liabila and, if the act was of that charucter, the ity of a common carrier to his passengers general rule is that the employe alone, for the assaults of his employes is of a and not the employer, is responsible. But most stringent character, far greater than owing to the peculiar circumstances which that of ordinary employers for the actions surround the carrying of passengers, as of their employes, yet they all limit the stated, a more stringent rule of liability liability to cases in which the assault and lias been cast upon the employer; and he iujury are wrongful. Upon this general has been held liable although the assault matter, in 2 Wood's Railway Law, 1199, was wanton and willful, and outside the the author thus states the rule: “In refer- scope of the employment. Noticeable inence to the application of this rulc, so far stances of this kind are the cases of Craker as railroad companies and carriers of pas- v. Railroad Co., 36 Wis. 657, in which, sengers are concerned, it may be said that when a conductor had forcibly kissed a they are not only bound to protect their lady passenger, the company was held repassengers against injury and unlawful sponsible for the unlawiul assault; and assault by third persons riding upon the Goddard v. Railroad Co., 57 Me. 202, in same conveya uce, so far as due care can which, when a brakeman bad committed secure that result, but they are bound ab. a gross and offensive assault upon an insolutely to see to it that no unla wful as- valid passenger, the company was held sault or injury is inflicted upon them by liable in damages. But here the defense their own servants. In the one case their is that the act of the conductor was lawful. liability depends upon the question of neg- If the immediate actor is free from responligence, whether they improperly admitted sibility because his act was lawful, can the passenger inflicting the injury upon his employer-one taking no direct part the train, while in the other the simple in the transaction-be held responsible? question is whether the act was unlawful. Suppose we eliminate the employe, and And_in Taylor on Private Corporations, assume a case in which the carrier has no (2d Ed.) § 347, it is said: While a carrier servants, and himself does the work of does not insure his passengers against carriage, should he assault and wound a every conceivable danger, he is held abso- passenger in the manner suggested by the lutely to agree that his own servants en instruction, it is undeniable that, if sued gaged in transporting the passenger shall as an individual, be would be held free commit no wrongful act against him. from responsibility, and the act adjudged

Recent cases state this liability in lawful. Can it be that, if sued as a car. the broadest and strongest language;rier for the same act, a different rule oband, without going beyond the actual de- tains, and he be held liable? Has he brocisions, it may be said that the carrier is ken his contract of carriage by an act liable for every conceivable wrongful act which is lawful in itself, and which as an done to a passenger by its train hands individual he was justified in doing? The and other employes while they are question carries its own answer; and it gaged in transporting him, no matter may be generally affirmed that, if an act how willful and malicious the act may be, of an employe be lawful, and one which or how plainly it may be apparent from he is justified in doing, and which casts its nature that it could not have been no personal responsibility upon him, no done in furtherance of the carrier's busi. responsibility attaches to the employer

See, also, Peavy v. Railroad, etc., therefor. * For the error of the court in Co., 81 GA. 485, 8 S. E. Rep. 70; Harrison v. respect to this instruction the judgment Fink, 42 Fed. Rep. 787.

must be reversed, and the case remanded • In most of the cases in which an injury for a new trial; and it is so ordered.

en

ness."

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