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"If the porter of a sleeping car, employed to guard the car while the passengers sleep, should himself fall asleep or, abandoning his post, allow a pickpocket to enter and rob the passengers, the company would be liable, but if the guardian should himself turn pickpocket, and rifle the pockets of the passengers, the company would not be responsible for his acts. The carrier selects his own servants and agents, and, we think, he must be held to warrant that they are trustworthy as well as skillful and competent."
See, also, Pendleton v. Kinsley, 3 Cliff. 416, Fed. Cas. No. 10,922; Adams v. Steamboat Co., 151 N. Y. 163, 45 N. E. 369, 34 L. R. A. 682, 36 Am. St. Rep. 616; Penn. R. R. v. Vandiver, 42 Pa. 365, 82 Am. Dec. 520; Am. & Eng. Enc. of Law (2d Ed.) vol. 5, pp. 542-5; 6 Cyc. pp.
The libelant was not negligent in leaving her stateroom door on the hook, which was used by her precisely as it was intended to be used. To hold that a passenger is guilty of negligence in using an appliance furnished by the carrier, to accomplish the purpose for which it was furnished, involves the implication that the carrier was negligent in furnishing it. There was nothing unusual in the use of the hook. It was a disagreeable night, rainy and foggy, when the portholes would naturally be closed. The libelant had not retired for the night; her light was burning and there was nothing to induce her to suspect that there was a thief among those whose duty it was to guard her and her property.
We think the notice of claim given the transport company or its agents was a substantial and sufficient compliance with the provisions of the ticket.
It remains to consider whether the District Court was justified in allowing a recovery for the value of the lost property over and above the $5,000 for which the vessel was bonded. There can be no doubt that at the commencement of the action the libelant had fully committed herself to $5,000 as the value of her jewelry. This was the sum stated in the written notice of claim signed by her proctor; it was again stated in her libel, in her answer to one of the claimant's interrogatories and in the stipulation and bond. If the claimant had been misled to its injury by reason of this mistake, we should be inclined to hold the libelant strictly to the sum thus demanded, but the claimant has not been misled in the slightest degree; the cause has proceeded precisely as it would have proceeded had the value been stated at $7,500 instead of $5,000. The mistake was a natural one. The libelant, at the outset, unmindful of the appreciation in value of diamonds and emeralds, gave the value of the cost price 12 or 15 years previous, and not at their actual worth at the time of the theft. If after the decison the claimant had offered to stipulate the damages at $5,000, a much more difficult question would be presented, but this was not done, and a reference was ordered.
The libelant called a jeweler of high character and long experience who was an expert in precious stones and thoroughly familiar with the lost jewelry, having frequently seen and handled the more valuable pieces. He stated the value of all the lost articles, giving a minimum and a maximum sum. For instance, he stated the value of the most elaborate piece-the diamond crescent-to be between $3,000 and $3,500. No testimony was offered by the claimant to dispute this proof,
although the case was remanded for that purpose, and the commissioner made a conservative report, accepting the minimum valve given and assessing the libelant's damage, in round numbers, at $7,000. That the amount of the loss was at least $7,000 is not disputed and cannot be disputed upon this proof.
In dealing with the question the district judge says:
"No merit appears in the claimant's exceptions. Every opportunity has been given it to contest the question of value. None has been availed of, and the exceptions must be overruled. The libelant moves to amend her libel by changing the allegation of damage so that the same shall read more than $7,500, instead of more than $5,000. This motion is granted."
The question, then, is, shall the libelant be precluded from recovering the full amount of her damages because, through inadvertence, she stated them in her pleading at $2,000 less than they actually are? Were this an ordinary action at common law or in equity, to state the question would be to answer it. Amendments conforming the pleadings to the proof are constantly being permitted under similar conditions. No case has been cited and we have been unable to find one preventing the court, sitting in admiralty, from exercising a sound discretion in allowing amendments where the object is merely to correct an estimate as to value, involving the introduction of no new facts or change in the cause of action. The Atlantic Transport Company appeared in the action as claimant, and it was within the power of the court to direct a decree against it for the balance of the libelant's loss. A court of admiralty has powers akin to those of a court of equity, and should not be hampered in its efforts to reach a substantial justice by the inexorable rules invoked by the claimant. As it was said by the Supreme Court:
"It is objected that the libel does not specifically charge this antecedent negligence as a fault. This is true, and the libel is defective on that account, but in admiralty an omission to state some facts which prove to be material, but which cannot have occasioned any surprise to the opposite party, will not be allowed to work any injury to the libelant if the court can see there was no design on his part in omitting to state them. There is no doctrine of mere technical variance in the admiralty, and, subject to the rule above stated, it is the duty of the court to extract the real.case from the whole record and decide accordingly." The Syracuse, 79 U. S. 167, 20 L. Ed. 382.
The decree of the District Court is affirmed, with interest and costs. The libelant has made a motion to rearrest the ship and for a new bond in the sum of $15,000, but, in view of our decision upon the appeal, we deem it unnecessary to decide this motion.
WEINBERGER et al. v. COMPAGNIE GENERALE TRANSATLANTIQUE.
(District Court, S. D. New York. June 12, 1906.)
1. SHIPPING-DAMAGE TO PASSENGER'S BAGGAGE-EVIDENCE OF NEGLIGENCE. Proof that a passenger's baggage was delivered to a vessel in good condition, and was damaged by seawater at the end of the voyage, is sufficient to establish the negligence of the carrier.
2. SAME-LIMITATION OF LIABILITY-CONDITION IN TICKET.
A provision printed in a steamship ticket for the carriage of six passengers, limiting the liability of the carrier for loss or damage to baggage to $100, not read by nor called to the attention of the passengers, is unreasonable and void.
In Admiralty. Suit by passengers for damage to baggage.
ADAMS, District Judge. The libellants, Mr. and Mrs. Julius Weinberger, bring this action to recover the damage caused to their and their children's baggage, while passengers on the respondent's steamship La Savoie, during a voyage from Havre, France, to New York, in December, 1905. The passage ticket was issued at the respondent's Paris office to the Weinberger family the evening before sailing. It appears that in addition to Mr. and Mrs. Weinberger, there were in the party covered by the ticket, two children and two maids, six persons in all. They had twenty pieces of baggage, of which a large portion were trunks, including one large wardrobe trunk and ten ordinary trunks, the remainder being steamer trunks and hat boxes. Seven of these trunks were stowed in the baggage compartment in the intermediary of the steamer between decks. They were all shown to have been in good order when delivered to the railroad in Paris and to the steamer at Havre. Upon arrival in New York while the trunks were on the respondent's pier, awaiting examination by the Customs officials, it was discovered that three of the trunks from the intermediary were wet and that the contents of two of them were damaged by what was subsequently proved to be salt water. The attention of the agents of the respondent was called to the condition of the contents of the two trunks. They duly examined the trunks and advised Mr. Weinberger to take them away and dry the contents, rather than leave them on the wharf, and this was done Saturday afternoon. It turned out, however, that some clothing in the trunks was seriously damaged and a timely claim was subsequently made upon the respondent in due form.
The respondent urges that there can be no recovery without proof of negligence and that none has been offered. The answer seems to be that the clothing was in good condition when it went aboard and at the end of the voyage was found to be wet with salt water.
The respondent also strongly urges that under the limitation of the ticket, together with certain conditions printed in connection therewith, there can be no recovery beyond $100.
The provisions relied upon are:
Each adult passenger is allowed free as baggage, 150 kilos or 20 cubic feet. The excess is charged for at the rate of 2 fcs. for each undivided fraction of 10 kilos. * **
"III Insurance of baggage and valuables may be effected at current rates under floating policy of the Company.
"IV The Company declines any responsibility for baggage not registered, or for effects in the personal possession of passengers, as well as for monies, deeds, jewelry and precious objects, unless they have been declared and paid for as valuables and deposited with the ship's purser against receipt delivered by him.
"V In case of damage or of the total loss of baggage for which the Company or the Captain may be responsible there shall not be allowed to the passenger more than 500 fcs. first class, or 300 fcs. second class, whatever may be the number or the contents, of his baggage, unless he may have had the full value insured under the floating policy of the Company. All claims for baggage lost or damaged must be made and notice given within 24 hours at the latest after the arrival of the ship, under penalty of forfeiture, in conformity with Article 435 of the French Commercial Code which shall apply to such cases."
These clauses although entitled "Conditions of Passage" do not appear to be anything more than notices. They are printed in connection with the ticket but not made a part thereof and are of no greater force than if printed on the back of the ticket. Both Mr. and Mrs. Weinberger have testified that they did not read them nor were they brought to their attention. Moreover, they were not reasonable and are, therefore, not enforceable, especially, although the ticket was designed to cover a number of passages, no provision is made for a greater liability than 500 francs for all and such amount is insisted was the extent of the respondent's liability. The contention can not be sustained.
The following authorities cover the legal aspects of this matter, viz.: The New England (D. C.) 110 Fed. 415; The Majestic, 166 U. S. 375, 17 Sup. Ct. 597, 41 L. Ed. 1039; The Kensington, 183 U. S. 263, 22 Sup. Ct. 102, 46 L. Ed. 190; The Minnetonka (D. C.) 132 Fed. 52, recently affirmed, see 146 Fed. 509.
There will be a decree for the libellants, with an order of reference.
UNIVERSAL BRUSH CO. v. SONN et al.
(Circuit Court, N. D. New York. July 14, 1906.)
1. PATENTS-INFRINGEMENT-METHOD OF MAKING BRUSHES.
The Morrison patent, No. 717,014, claim 1, for a method of making brushes, which consists in depositing a mass of heated plastic composition, which becomes hard when cooled, within a chambered brush-frame having a contracted aperture, and forcing one end of the groups of bristles into the composition when in the plastic state, is a fundamental one, which made an important and useful advance on the prior art, and is entitled to a broad construction and to the benefit of the doctrine of equivalents. The chamber having a "contracted aperture" is merely one of the means used in carrying the method into effect, and the claim is infringed by the method of the Sonn patent, No. 791,510, which is the same in principle, and, although the chamber used has not such contracted aperture, it has a raised portion in the center, which is its substantial equivalent as such
A substantial equivalent of a patented device or means which performs the same function does not avoid infringement because it may perform an additional function.
[Ed. Note-For cases in point, see vol. 38, Cent. Dig. Patents, § 374.]
Suit in equity to restrain alleged infringement of United States letters patent No. 717,014, dated December 30, 1902, application filed November 26, 1898, and issued to Universal Brush Company, assignee of William Morrison, the inventor, for improvements in making brushes. Complainant also asks an accounting.
George A. Mosher, for complainant.
Ward & Cameron (John P. Bartlett and Frederick W. Cameron, of counsel), for defendant.
RAY, District Judge. This patent relates to that class of brushes having a chambered back of wood, metal, or other material, and a plurality of bristle-tufts secured in such back or frame by means of a composition. This composition, when heated, is soft and plastic, but becomes hard and firm when cooled. The patent in suit has two claims, the first of which relates to the method of making brushes, and this only is in issue. That claim reads as follows:
"(1) The herein described method of making brushes which consists in depositing a mass of heated plastic composition within a chambered brushframe having a contracted aperture, forcing one end of a group of exposed bristle-tufts through the aperture and into the composition, and at the same time giving form to the face of the composition by mould-pressure, and supporting the bristles in the desired position, projecting from the composition out through the face aperture, until the composition cools and hardens.”
The specifications expressly state that, "in making brushes by my improved method above described, the brush-back or frame may be made of any desired material, and in any known manner." The method claim of the patent, therefore, relates solely to the method of attaching the bristles to the back or frame by means of this composition. In the manufacture of brushes of this description the bristle apertures of a plate or die, made for the purpose, are filled with bristles of suitable length, so that they form a plurality of tufts or knots, each distinct and separate from the others. The heated and therefore plastic composition is then put in the recess or aperture in the face of the brush-back or frame, and the projecting bristles still held in the plate or die are then forced into the composition, and form is given to the face of the composition among these tufts of bristles by contact with the face of the die, and the tufts of bristles are also supported in the proper position until the composition cools and hardens. During this process of pressure of the die upon the plastic material, the one end of the tufts of bristles are in that material, while the other end projects out through the apertures of the die on the upper or outside thereof, and are wholly separated and protected from contact with the composition. When this material has hardened, the pressure and die are removed, and we have the composition filling the recess or aperture in the face of the brush-frame or back,