1. This case involves deciding whether the defendants in error are liable for the damage occasioned to certain property, resulting from a fire which occurred on October 28, 1894, in a railroad yard at East St. Louis, Illi- nois. At the time of the fire Bosworth was operating the railway as receiver. The decision depends largely, if not entirely, on facts, which are stated at great length by the court, both in the statement of the case, and in its opinion. These papers are most carefully prepared. While both deal with facts, those facts are stated with clearness, with fullness, with completeness, and with unusual care. They leave nothing un- touched. Without treating them with the same fullness, the reporter feels himself unable to prepare a headnote which could convey an ade- quate and just account of the opinion and decision of the court. Under these circumstances he deems it best not to attempt an impossibility, but to respectfully ask the readers of this headnote to regard the opin- ion of the court in this case as incorporated into it. Huntting Elevator Co. v. Bosworth, Receiver, 415.
2. The plaintiff, an employé of the railway company, was injured while at work for it. With reference to his contention that the trial court erred in directing a verdict for the defendant, and in failing to leave the ques- tion of negligence to the jury, this court, after stating the facts, said: (1) That while in the case of a passenger, the fact of an accident carries with it a presumption of negligence on the part of the carrier, a presump- tion which, in the absence of some explanation or proof to the contrary is sufficient to sustain a verdict against him, a different rule obtains as to an employé. The fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employé to establish, that the employer has been guilty of negligence; (2) that in the latter case it is not sufficient for the em- ployé to show that the employer may have been guilty of negligence, but the evidence must point to the fact that he was; and where the tes- timony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible, and for some of which he is not, it is not for the jury to guess between these half a dozen causes, and find that the negligence of the employer was the real cause when there is no satis- factory foundation in the testimony for that conclusion; (3) that while the employer is bound to provide a safe place and safe machinery in which and with which the employé is to work, and while this is a pos- itive duty resting upon him, and one which he may not avoid by turn- ing it over to some employé, it is also true that there is no guaranty by the employer that the place and machinery shall be absolutely safe, He is bound to take reasonable care and make reasonable effort, and the greater the risk which attends the work to be done and the machinery. to be used, the more imperative is the obligation resting upon him. Patton v. Texas & Pacific Railway Co., 658.
3. The rule in respect to machinery, which is the same as that in respect to place, was accurately stated by Mr. Justice Lamar for this court in Washington & Georgetown Railroad v. McDade, 135 U. S. 554, 570. Ib.
A surety who signs an unconditional promise is not discharged from liabil- ity thereon by reason of any expectation, reliance or condition, unless notice thereof be given to the promisee; or, in other words, the con- tract stands as expressed in the writing in the absence of conditions which are known to the recipient of the promise. Joyce v. Auten, 591.
1. The constitution of Minnesota of 1858, still in force, provided that all taxes should be as nearly equal as may be, and that the property taxed should be equalized and uniform throughout the State. It made pro- vision for certain defined exemptions, and provided for uniform and equal taxation throughout the State. Before that time, namely, on September 28, 1850, Congress had granted to the several states, Minne- sota included, the swamp and overflowed lands within each; and other grants were subsequently made, as stated in the opinion of the court, subject to be taxed only as the land should be sold. There were also statutes passed in regard to the taxation of land granted to the Lake Superior and Pacific Railroad Company, which are set forth in the opinion of the court. In 1896 an act was passed, repealing all former laws exempting from taxation, and providing for the taxation of the lands granted to railroads as other lands were assessed and taxed. Held, that in this legislation a valid contract was created, providing for the taxation of all railroad property (lands included) on the basis of a per cent of the gross earnings, which contract was impaired by the legislation of 1896, withdrawing the lands from the arrangement, and directing their taxation according to their actual cash value; that as to the St. Paul & Duluth Railroad Company a contract was made, and only Congress can inquire into the manner in which the State exe-
cuted the trust thereby createa and disposed of the lands; and that, as to the Northern Pacific Company, the legislation changed materially the terms of the contract between the State and that company. Stearns v. Minnesota, 223.
2. By a general revenue act of the State of Georgia, a specific tax was levied upon many occupations, including that of "emigrant agent," meaning a person engaged in hiring laborers to be employed beyond the limits of the State. Held, that the levy of the tax did not amount to such an interference with the freedom of transit, or of contract, as to violate the Federal Constitution. Williams v. Fears, 270.
3. Nor was the objection tenable that the equal protection of the laws was denied because the business of hiring persons to labor within the State was not subjected to a like tax. Ib.
4. The imposition of the tax fell within the distinction between interstate commerce, or an instrumentality thereof, and the mere incidents which may attend the carrying on of such commerce. These labor contracts were not in themselves subjects of traffic between the States, nor was the business of hiring laborers so immediately connected with inter- state transportation or interstate traffic that it could correctly be said that those who followed it were engaged in interstate commerce, or that the tax on that occupation constituted a burden on such com- merce. Ib.
5. In this record there is no averment and no proof of any violation of law by the assessors of New York. The mere fact that the law gives the assessors in the case of corporations two chances to arrive at a correct valuation of the real estate of corporations when they have but one in the case of individuals, cannot be held to be a denial to the corporation of the equal protection of the laws, so long as the real estate of the corporation is, in fact, generally assessed at its full value. New York State v. Barker (No. 1), 279.
6. This court cannot, with reference to the action of the public and sworn officials of New York city, assume, without evidence, that they have violated the laws of their State, when the highest court of the State refuses, in the absence of evidence, to assume such violation. Ib.
1. In 1862, plaintiff's husband discovered a spring of bitter water in Hun- gary, and was granted by the Municipal Council of Buda permission to sell such water, and to give the spring the name of "Hunyadi Spring." He put up these waters in bottles of a certain shape and with a pe- culiar label, and opened a large trade in the same under the name of "Hunyadi Janos." In 1872, one Markus discovered a spring of similar water and petitioned the Council of Buda for permission to sell the water under the name of "Hunyadi Matyas." This was denied upon the protest of Saxlehner; but in 1873 the action of the Council was reversed by the Minister of Agriculture, and permission given Markus to sell water under the name of "Hunyadi Matyas." Other proprietors seized upon the word "Hunyadi " which became generic as applied to bitter waters. This continued for over twenty year when, in 1895, a
new law was adopted, and Saxlehner succeeded in the Hungarian courts in vindicating his exclusive right to the use of the word "Hunyadi." In 1897 he began this suit. Held: That the name “Hunyadi" having become public property in IIungary, it also became, under our treaty with the Austro-Hungarian Empire in 1872, public property here; that the court could not take notice of the law of Hungary of 1895 reinstat- ing the exclusive right of Saxlehner, and that the name having also be- come public property hero, his right to an exclusive appropriation was lost; Held also: That even if this were not so, he, knowing the name "Hunyadi " had become of common use in Hungary, was also charge- able with knowledge that it had become common property here, aud that he was guilty of laches in not instituting suits, and vindicating his exclusive right to the word, if any such he had; Held also: That acts tending to show an abandonment of a trade mark being insufficient, unless they also show an actual intent to abandon, there was but slight evidence of any personal intent on the part of Saxlehner to abandon his exclusive right to the name "Hunyadi," and that a company, to. whom he had given the exclusive right to sell his waters in America was not thereby made his agent and could not bind him by its admis- sions: Held also: That the fact that he registered the trade mark "Hun- yadi Janos" did not estop him from subsequently registering the word "Hunyadi" alone; Held also: That the appropriation by other parties of his bottle and label, being without justification or excuse, was an active and continuing fraud upon his rights, and that the defence of laches was not maintained; Held also: That the adoption by the de- fendant of a small additional label, distinguishing its importation from others did not relieve it from the charge of infringement, inasmuch as the peculiar bottles and labels of the plaintiff were retained. Saxlehner v. Eisner & Mendelson Co., 19.
2. The term trade mark means a distinctive mark of authenticity, through which the products of particular manufacturers or the vendible com- modities of particular merchants may be distinguished from those of others. Elgin National Watch Co. v. Illinois Watch Case Co. 665. 3. As its office is to point out distinctively the origin or ownership of the articles to which it is affixed, no sign or form of words can be appro- priated as a valid trade mark, which from the fact conveyed by its pri- mary meaning, others may employ with equal truth, and with equal right, for the same purpose. Ib.
4. Words which are merely descriptive of the place where an article is manu- factured cannot be monopolized as a trade mark, and this is true of the word " Elgin" as in controversy in this case. Ib.
5. Where such a word has acquired a secondary signification in connection with its use, protection from imposition and fraud will be afforded by the courts, while at the same time it may not be susceptible of regis- tration as a trade mark under the act of Congress of March, 1881. Ib. 6. The parties to this suit being all citizens of the same State and the word in controversy being a geographical name, which could not be properly registered as a valid trade mark under the statute, the Circuit Court had no jurisdiction.
7. In view of this conclusion and of the fact that the constitutionality of the act of Congress was not passed on by the court below, that subject is not considered. Ib.
1. Certain familiar rules of construction of wills reiterated: (a) That the intention of the testator must prevail; (b) that the law prefers a con- struction which will prevent a partial intestacy to one that will permit it, if such a construction may reasonably be given; (c) that the courts in general are averse from construing legacies to be specific. Kenaday v. Sinnott, 606.
2. Ademption is the extinction or withdrawal of a legacy in consequence of some act of the testator equivalent to its revocation or clearly indica- tive of an intention to revoke.
3. In this case, in view of the general intention of the testator as plainly shown by the provisions of his will taken together, and of the rules against partial intestacy and against treating legacies as specific, the bequest of money as therein made to testator's widow is construed not to have been a specific legacy but rather in the nature of a demonstra tive legacy, and a change, between the date of the will and the death of the testator, from money into bonds, held not to be an ademption, and so a rule of law rather than a question of intention. Ib.
« ForrigeFortsett » |