RILEY V. HARTFORD LIFE & ANNUITY INS. Co.1 LIFE INSURANCE-SUICIDE "FELONIOUS OR OTHERWISE." Where a life insurance policy provides that it shall be void in case the assured die by "self-destruction, felonious or otherwise," the proviso includes all cases of voluntary self-destruction, sane or insane. At Law. 6 Suit upon certificates of membership issued by defendant, insuring the life of George M. Riley. The answer states, among other things, that the "certificates sued on herein were issued by the defendant and accepted by George M. Riley upon the following express condition and agreement made between the said assured and the defendant and constituting part of said certificates, to-wit: That if said member should die by self-destruction, felonious or otherwise,' then, and in such cases, the said certificates should be null and void and have no effect, and no person should be entitled to damages or the recovery of any money paid thereon;" and that the assured "came to his death from self-destruction, in this: that the said assured died from the immediate effect of a pistol fired by his own hands, such shot having been so fired by the assured with the intention of taking his own life." Replication that the assured committed suicide while insane. A jury having been sworn to try the issues in said cause, plaintiff first offered in evidence the petition of the plaintiff for divorce, which was filed January 19, 1884. Mr. Krum, counsel for the defendant, objected on the ground that there is no denial in the replication that the shot was fired by the deceased with the intention on his part of taking his own life. "In other words," said he, "there is nothing in this replication to place this case upon the theory of an accidental destruction of his life by his own act. The plaintiff concedes that the death of her husband, the assured, was caused by the act of the assured himself. It was conceded that the death did not result by reason of any accident to which the assured was exposed. He took his life himself. He fired the shot intentionally, according to the averment of the answer, and with the intention of taking his own life. That fact is not denied, and I submit, in the light of all the authorities upon this question, the defendant is entitled to a verdict upon the pleadings, and that it is not competent to go into any inquiry at all as to the condition of the mind of the assured at the time when he committed the act of which this defendant complains." TREAT, J., (orally.) Ordinarily, of course, felony implies an intent. That is involved in all this class of inquiries; but your proposition is broader "feloniously or otherwise." Whether that is broad enough to exclude all these considerations, I will not pass upon to-night. The court thereupon adjourned until October 15, 1885. On October 15, 1885, the court met pursuant to adjournment, and the following opinion was delivered: George M. Stewart, for plaintiff. Chester H. Krum, for defendant. TREAT, J., (orally.) After we adjourned last evening I took time to examine the proposition raised by the counsel for the defendant in this cause. The proposition in its more convenient form could have been presented by a demurrer to the replication, and thereby have saved time and unnecessary delay. Mr. Krum. My excuse for not doing so, your honor will remember, was because I have been so hurried with other matters in this court that I did not have time to present the question in the form of a demurrer. The Court. The proposition now comes up after the jury is impaneled on the presentation of the first item of testimony offered in this case. Whether that should be admitted or rejected depends on the determination of the court with respect to the true construction of the policy submitted. I have examined these cases to which cour sel have referred. They are not new to me, because the original Terry Case (Insurance Co. v. Terry, 15 Wall. 580) went from this cir uit court, and the Case of Bigelow, decided in the United States supreme court, 93 U. S. 284, remains unchanged, and the Case of Broughton, 109 U. S. 121, S. C. 3 Sup. Ct. Rep. 99, and the Case of Lathrop in 111 U. S. 612, S. C. 4 Sup. Ct. Rep. 533, do not vary the rule; for the policies in both those cases were like the original Terry Case. But where parties insert in the contract "that if the death is caused by the assured, sane or insane," then there can be no recovery, if he committed the fatal act otherwise than accidentally. Of course, if it is accidental, it was not his act. The next question presented here is whether the use of the terms "feloniously or otherwise" are equivalent to the terms "sane or insane." As suggested last night, the word "feloniously" ordinarily implies an intent, which might lead the court to inquire whether the party was capable of having an intent within the meaning of the law, which would leave this case as in the Terry and other like cases. The supreme court in the Case of Bigelow decided that the use of this phrase "feloniously or otherwise" was equivalent to the words "sane or insane," so that if the assured caused his own death that was the end of the right of recovery; consequently this court has to rule out all testimony looking to the condition of the mind of the 66 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 the pleadings as they stand before the court, the assured, George M. Riley 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. MISSOURI PAC. RY. Co. v. CHICAGO & A. Ry. Co.1 (Circuit Court, E. D. Missouri. November 5, 1885.) 1. 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 route by fire. 2. 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 a warehouseman. 8. SAME-IMPLIED CONTRACT TO RETURN CARS. Semble, that no implied contract to return cars arises where they are received loaded for transportation and delivery to a consignee. At Law. Suit for the value of a number of cars delivered in good order, loaded with grain, by plaintiff to defendant, for transportation 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 road, and forward the same; and accepting the general principle stated in Peoria & P. U. Ry. Co. v. Chicago, R. I. & 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 1 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. (Circuit Court, D. Massachusetts. October 31, 1885.) PATENTS FOR INVENTIONS-CELLULOID COMBS-WANT OF INVENTION. 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. M. Fett, for American Zylonite Co. COLT, J. The defendants are charged with infringement of letters patent No. 223,311, dated January 6, 1880, 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, substantially as set forth. (2) The process of making combs of celluloid or analogous material herein set forth, in which a jet or stream of water 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 lubri cation, 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 |