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ity to earn a living for himself and family of which he was possessed? It is said by the plaintiff's counsel that it would cost $8,100, at the ruling rates of interest, to purchase an annuity of $168, which is taken as representing his yearly earnings, for a person of his age. But this is putting these earnings-all things considered-entirely too high. Neither is the problem to be solved on the basis of what would be required to buy an annuity. Year in and year out, from the age of 40 to 70, which comprised the probable span of life of this man at the time of the accident, $1.25 a day, or $375 a year, as it seems to me, was all, on an average, that he could expect to earn by the labor of his hands. This allows for contingencies which cannot be disregarded, as well as for decreasing ability with the advance in age. Now, $7,500 invested at 5 per cent, which it ought not to be difficult to obtain, would yield $375 a year throughout the plaintiff's life; affording him all that he could hope to earn, and leaving the principal intact at the end. Except for the latter circumstance, this might be regarded as fairly representing, in capitalized form, the earning power of the plaintiff, of which he has been deprived; but the fact that the capital remains unimpaired must be taken into consideration, and a material deduction made on account of it. Theoretically this should be such that, at compound interest for the period of expectancy, it would equal, and thus offset, the amount awarded, which it would thus practically wipe out. In the present instance, if I have figured it correctly, there should be a reduction of some $1,500 from the sum first named, leaving $6,000 to represent the actual pecuniary loss. To this must be added something, outside of the question of earnings, to compensate for the suffering which the plaintiff has endured, and for the fact, aside from any sentiment. that he must go blind all his days. Fixing this at $2,000, the total damages would be $8,000, to which amount, in my judgment, the verdict should be reduced.

It is therefore ordered that the plaintiff within 20 days agree to a reduction of the verdict to $8,000, remitting the excess, or otherwise that the defendants have a new trial.


(District Court, E. D. Pennsylvania. July 7, 1904.)

No. 51.

1. ADMIRALTY-FREIGHT-NONDELIVERY INTERROGATORIES-EXCEPTIONS. Where, on a libel in admiralty to recover for a shortage of 51 tons in a delivery of pig iron, it was alleged that respondent delivered to other consignees out of the same cargo 91 tons of pig iron more than had been shipped to them, respondent could not object to answering interrogatories calling for the names of the other consignees to whom delivery of pig iron was made out of the same cargo, the number of tons delivered to each, and the amount called for by their respective bills of lading, on the ground that it required respondent to disclose the business of other shippers engaged in the same trade as libelant.

In Admiralty. Dismissing exceptions to interrogatories.

Flanders & Pugh, for libelant.

Biddle & Ward, J. Rodman Paul, Howard H. Yocum, Convers & Kirlin, and John Munro Woolsey, for respondents.

HOLLAND, District Judge. The libelant alleges that the respondent company delivered to them, at Philadelphia, 51 tons of pig iron less than was placed on board its vessels at Rotterdam for them, and further alleges that at the same time the respondent delivered to other consignees, out of the same cargo, 91 tons of pig iron more than they had shipped to them. A recovery for the amount of shortage in pig iron is sought by the libelant, and interrogatories were filed requiring the respondent to answer on oath, giving the names of the other consignees to whom delivery of iron in Philadelphia was made out of the same cargo, the number of tons to each, and the amount in excess to such consignees called for by their respective bills of lading. Exceptions were filed to these interrogatories for the reason they are irrelevant and immaterial to the issue raised by the libel and answer, and objecting to a disclosure of the business of the respondent.

I cannot agree with the exceptants. The claim of libelant that there were delivered to them 51 tons of pig iron less than was placed on board for them is the fact sought to be established, and if they can show that other consignees, who shipped iron at the same time in the same vessels, received much more than they had purchased and for which their bills of lading called, it would be some evidence to show that the libelant's iron had been received on board and delivered to some one else by the respondent. The objection that it requires the respondent to disclose the business of their shippers engaged in the same trade as libelant cannot be considered if the libelant's claim is a valid one. They are entitled to the production of such facts as will prove their case, notwithstanding it may divulge the business of other shippers who are engaged in the same business. There is nothing in the law to exempt respondent from disclosing in its answer to interrogatories matters of this kind, otherwise relevant, so long as they are not matters which will expose him to any prosecution or punishment for crime or for any penalty or any forfeiture of his property for any penal offense. This is the only ground of objection that can be interposed to interrogatories eliciting facts which have a bearing upon the case.

The exceptions are dismissed, and the respondent directed to answer.


(Circuit Court, S. D. New York. June 15, 1904.)


The name "Pepto-Mangan," as applied to a medicinal preparation, is apparently arbitrary and fanciful, rather than merely descriptive, and, in the absence of evidence to the contrary, must be assumed to be one which may be lawfully appropriated as a trade-mark.


A bill alleging that defendants make a medicinal preparation similar to one sold by complainant, which they have given a similar name, and have supplied to customers asking for complainant's preparation, states a cause of action.

In Equity. Suit for infringement of trade-mark and for unfair competition. On demurrer to bill.

Philip Carpenter and Frank Parker Ufford, for complainant. Frederick C. McLaughlin and Fred. L. Chappell, for defendants.

HOLT, District Judge. I do not think that the name "Pepto-Mangan" is simply descriptive, within the meaning of that term in the law of trade-marks. It seems, if analyzed by a person familiar with the Greek and German languages, somewhat descriptive, but I think it would seem to the general public to be an artificial and manufactured word. The complaint alleges that the inventor "adopted the arbitrary and fanciful words 'Pepto-Mangan' as the trade-mark and trade-name" by which to designate his preparation, and the demurrer formally admits this allegation. Evidence possibly might lead to a different conclusion, but on this demurrer I think it clear that the court cannot assume that the term "Pepto-Mangan" is purely descriptive, but must assume that it is an arbitrary and fanciful trade-mark. That being so, it is not at all clear, under the authorities, that the defendants did not infringe the rights of the complainant when they adopted as the name of their preparation "Pepto-Manganate of Iron and Cascara." Moreover, the complaint alleges that the defendants have substituted their tablets, and supplied them to customers who have asked at their store for the complainant's "Pepto-Mangan." This allegation is formally admitted by the demurrer, and constitutes a legal cause of action, which, if supported by evidence, would authorize a recovery. Undoubtedly some of the facts alleged in the complaint do not constitute any legal cause of complaint, but I think that it is impossible to hold, upon this demurrer, that no cause of action whatever is alleged.

Demurrer overruled, with leave to defendants to answer within 20 days on payment of costs.

1. Arbitrary, descriptive, or fictitious character of trade-marks or tradenames, see note to Searle & Hereth Co. v. Warner, 50 C. C. A. 323.

¶ 2. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper, 30 C. C. A. 376.


(Circuit Court of Appeals, Eighth Circuit. May 28, 1904.)

No. 1,941.


Innkeepers are not insurers of the safety of the persons of their guests. The limit of their liability is for the exercise of reasonable care for the safety, comfort, and entertainment of their visitors.


Innkeepers do not contract to insure the safety of their guests against injuries which are inflicted upon them by the negligent or willful acts of their servants beyond the scope and course of their employment, and for such acts they are not liable in damages when they have exercised reasonable care to prevent them.


A boy about six years of age, a guest of the defendants at their hotel, wandered out of the room assigned to him, and into a room in which a bell boy or porter of the defendants was engaged in playing a harmonica for his own amusement, and the latter accidentally or willfully shot the former with a pistol.

Held, the bell boy was not acting within the course or within the apparent or actual scope of his employment at the time of the shooting, and the innkeepers were not liable for the injury he inflicted.

Thayer, Circuit Judge, dissenting.

(Syllabus by the Court.)

In Error to the Circuit Court of the United States for the District of Nebraska.

John O. Yeiser, for plaintiff in error.

William A. Redick, for defendants in error.

Before SANBORN, THAYER, and HOOK, Circuit Judges.

SANBORN, Circuit Judge. This case was determined in the lower court on a demurrer to the evidence; the trial court holding, on the conclusion of the plaintiff's testimony, that there was no substantial evidence warranting a recovery. It accordingly directed a verdict in favor of the defendants. This action was taken on testimony which tended to establish, and did establish, the following facts:

Freeman Clancy, in whose behalf the action is brought, at the time of the accident hereafter described, was about six years old, and was stopping with his parents at the Barker Hotel, in the city of Omaha, Neb.; the father, mother, and son having been guests at the hotel for a few days prior to the accident. During the evening of January 15, 1902, about 8:30 p. m., he went down the elevator from one of the upper floors, where the room occupied by his parents was located, to the ground floor of the hotel for the purpose, as he says, of getting some ice water. Reaching the ground floor, he passed by a room where some one was playing a harmonica. The door being ajar, he entered this room, actuated, apparently, by no other motive than childish curiosity, and found a boy, who was employed about the hotel either as a bell boy or porter, engaged in playing the instrument. Another boy who ran the hotel elevator

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was also in the room. Both of these employés of the hotel seem to have been off duty at the time, and engaged in amusing themselves in a room that was not occupied by guests. As the boy Clancy entered the room, the boy who was playing the harmonica said to him, evidently in jest, "See here, young fellow; if you touch anything, here is what you will get," at the same time pointing a pistol at him. The pistol was accidentally discharged, the ball striking the boy in the head, fracturing "the frontal ethnoid and sphenoid bones of the head," and destroying one of his eyes. The ball also passed through the boy's thumb, but the injury did not prove fatal.

One paragraph of the complaint, on which the case was tried, alleged:

"That on or about the 12th day of January, 1902, the said father and mother of the plaintiff entered the said hotel of defendant with their said infant child, the plaintiff, as guests of defendant, for a temporary rest in said city at said hotel, and were received by the said defendants as the guests of the said innkeepers or hotel keepers; the defendants thereby contracting with the said father for and on behalf of said plaintiff, and with the plaintiff by implication of law, for his personal safety, kind treatment, and for all of the usual hospitalities, covenants, and agreements, and obligations due from an innkeeper and hotelkeeper to his guests."

Another paragraph of the complaint alleged, in substance, that it was the duty of the bell boy or porter, through whose acts as aforesaid the injury was sustained

"To direct the guests of said hotel about said hotel, and to wait on, watch over, and protect said guests and their property and the property of the said hotel, and such other duties as are usually required of porters by innkeepers or hotel keepers, and imposed by law."

Another paragraph of the complaint alleged that said bell boy or porter, being a servant of the defendants and of said hotel, in that capacity, by the acts heretofore described

"Violated all obligations of hospitality and patience due from said defendants, through said servants, to said infant guest, and the defendants thereby violated their agreement, duty, and obligation of law with and to the plaintiff."

On this state of facts and pleading, counsel for the plaintiff in error asserts a right of recovery against the defendants on two grounds: First, he contends that by receiving the boy and his parents as guests at the hotel the proprietors of the hotel undertook, like a common carrier of passengers, to protect him against injuries occasioned by the negligence or willful misconduct of their employés in and about the hotel, and that this contractual obligation of the defendants was violated. In the second place, counsel contends that when Lacey, the porter, pointed the pistol at the boy, he was guilty of a wrongful and negligent act; that he was engaged at the time in the performance of one of his duties as servant; and that on this ground the defendants are liable. It is argued that it was a part of Lacey's duty as a servant, when the child entered the room where he was playing the harmonica, to see that he did not disturb or handle any articles in the room; that a jury might well infer that the act which occasioned the injury was done by Lacey in the performance of this duty; and that the ordinary rule, "Respondeat superior," applies to the case. We entertain no doubt that the act in question was in fact wrong

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