ARTER V. NORTHWESTERN MUT. LIFE INS. CO. OF MILWAUKEE. (Circuit Court of Appeals, Third Circuit. June 13, 1904.)

No. 59.

1. LIFE INSURANCE COPY.

- POLICIES — APPLICATION-ATTACHMENT-PHOTOGRAPHIC

A correct photographic copy of an application for life insurance, reduced in size, but legible, attached to the policy, constituted a compliance with the Pennsylvania laws (Act May 11, 1881, P. L. 20) requiring insurance companies to attach a copy of the application to policies where such application is referred to and made a part of the policy.

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

J. W. Kinnead, for plaintiff in error.

H. A. Miller, for defendant in error.

Before DALLAS and GRAY, Circuit Judges, and KIRKPATRICK, District Judge.

DALLAS, Circuit Judge. This was an action by Lydia B. Arter (plaintiff in error) against the Northwestern Mutual Life Insurance. Company (defendant in error) to recover upon a policy of insurance upon the life of her husband, Winfield S. Arter, who died upon December 27, 1901. The defense was that within two years from the date of his application for the insurance he had died by his own hand, and that, therefore, the company was not liable, because the application (which was expressly made a part of the contract) contained the following agreement:

"It is hereby declared and agreed all the statements and answers written in this application, marked Part I, as well as those to be made to the Medical Examiner, marked Part II, are warranted to be true and full and fair answers to the questions and are offered to the company as a consideration for the Contract of Insurance, which shall not take effect until the first premium shall have been actually paid during the life of the person herein proposed for insurance, and while he is in good health. It is also agreed that if within two years from the date hereof, I shall pass south of the Tropic of Cancer, or be personally engaged in blasting, mining or sub-marine operations, or in the production of highly inflammable or explosive substances, or in switching or coupling or uncoupling cars, or be employed in any capacity on the trains of a railroad except as passenger or sleeping car conductor, mail agent, express messenger or baggage master, or in ocean navigation, or shall enter or be engaged in any military or naval service (except in time of peace), without a written permit therefor signed by the President or Secretary of the Company, or shall, within the said two years, either undertake an aërial voyage, or die in consequence of a duel, or, whether sane or insane, die by my own hand, then, and in every such case, any policy issued on this application shall be null and void."

A Pennsylvania statute (Act May 11, 1881, P. L. 20) provides (section 1):

"That all life and fire insurance policies upon the lives or property of persons within this commonwealth, whether issued by companies organized under the laws of this state or by foreign companies doing business therein, which contain any reference to the application of the insured * either as forming part of the policy or contract between the parties thereto, or hav

*

ing any bearing on said contract, shall contain or have attached to said policies correct copies of the application as signed by the applicant, * and unless so attached and accompanying the policy no such application shall be received in evidence in any controversy between the parties to or interested in the said policy, nor shall such application or by-laws be considered a part of the policy or contract between such parties."

The only substantial point presented by this record is whether the court below was in error in instructing the jury, with reference to the foregoing statutory provision, that a correct copy of the application was attached to the policy in suit, and in declining to submit that question to the jury. There was in fact a photographic copy attached to the policy, which comparison with the original demonstrates to be a correct one, and the only testimony upon the subject was that it is so. Therefore, if there were nothing more in the case, it would be difficult to assign any rational ground for objection to the action of the court; but the real subject of complaint is, not that the copy is not a correct one, but that it is not legible, and it has been not unreasonably urged that in fairness to the insured the original should not have been so greatly reduced in the reproduction. But the learned trial judge appears to have experienced no difficulty in reading it, and, although it has become somewhat blurred-probably since the trial-we, too, have been able to read it. Under these circumstances there was nothing to be left to the jury. The photographic print was certainly "correct," and, in the absence of any specific designation or description in the statute, we know of no more apt test by which to determine whether it should be regarded as a "copy" than that supplied by Stephen (Dig. of Ev. p. 3) in defining the word "document," which, he says, "means any substance having any matter expressed or described upon it by marks capable of being read."

The judgment of the circuit court, is affirmed.

NOTE BY THE COURT. The judgment in this case was determined upon prior to the death of the late Judge Kirkpatrick, and was concurred in by him.

JOHNSTON v. TURNBULL.

(Circuit Court of Appeals, Third Circuit. June 13, 1904.)

No. 23.

1. MASTER AND SERVANT-STEVEDORES-INJURIES-DEFECTIVE APPLIANCES. Where a chain used in unloading a vessel, the breaking of which caused the death of a stevedore, had been subjected both to test and inspection shortly before the injury, and did successful service for at least one day before it broke, evidence of two expert witnesses that in their opinion a crack must have been present in the chain, and could have been seen by a careful observer, was insufficient to establish that the chain was dangerously defective at the time it was inspected.

Appeal from the District Court of the United States for the Eastern District of Pennsylvania.

For opinion below, see 124 Fed. 476.

130 F.-49

J. H. Brinton, for appellant.

Henry R. Edmunds and J. Parker Kirlin, for appellee.
Before ACHESON, DALLAS, and GRAY, Circuit Judges.

DALLAS, Circuit Judge. This is an appeal from a decree in admiralty dismissing the libel of Margaret Johnston, widow of Michael Johnston, by which she sought an award of damages to compensate her for the loss resulting to her from his death. He, with others, had been employed to unload a cargo of iron from the steamship Fairmead, and while he was engaged in that work a chain which was used to hoist the loaded buckets broke or parted, and a filled bucket which was attached to it fell back into the hold of the vessel, where Johnston was, and so injured him that he soon after died. These facts were undisputed, but they, of course, did not suffice to support the libel. The gravamen of the cause rested in the libelant's averment that those who were in charge of the Fairmead had not exercised due care to provide a reasonably safe chain; and the only substantial question was as to whether the truth of that averment had been established by the weight of the evidence. The learned district judge found that it had not been, and we have independently arrived at the same conclusion. There was evidence that this chain had been subjected both to test and inspection shortly before it was put to the use for which, after at least one day of successful service, it proved to be unfit. That the test was not made with especial reference to the occasion in question is immaterial. It is enough that it was in fact made, and that it was amply adequate to warrant the belief that the chain was not dangerously defective. The testimony of two witnesses that they had carefully inspected it was consonant and positive, and we think the court below was clearly right in refusing to discredit them because two persons whom the libelant called as experts testified that, in their opinion, a crack must have been present, which could have been seen by a careful observer.

No useful purpose would be subserved by reviewing the evidence in detail. Its attentive consideration has satisfied us that it did not sustain the essential charge of negligence, and nothing further need be said of it.

The decree of the District Court is affirmed, with costs.

YOCUM et al. v. PARKER et al.

(Circuit Court of Appeals, Eighth Circuit. April 8, 1904.)

No. 1,964

1. JURISDICTION OF FEDERAL COURTS-ALLEGATIONS OF CITIZENSHIP. An averment of residence is not equivalent to one of citizenship for the purpose of invoking the jurisdiction of a federal court.

2. SAME-DENIAL OF JURISDICTIONAL ALLEGATIONS.

A federal court is without jurisdiction of an action at law where the answer contains a general denial, which under the state practice puts in

¶ 1. Averments of citizenship to show jurisdiction of federal courts, see note to Shipp v. Williams, 10 C. C. A. 261.

issue the jurisdictional allegations of the complaint, and there is no proof to sustain such allegations.

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

For opinion below, see 130 Fed. 722.

This was an action in ejectment to recover possession of real property in Platte county, Mo. In the jurisdictional averments of the petition it is recited that one of the plaintiffs is a resident of the state of Colorado, that the other is a resident of the state of Idaho, and that all of the defendants are residents and citizens of the state of Missouri. The answer of the defendants contains a general denial, but does not contain any admission or averment concerning the residence and citizenship of the parties. There is nothing in the remainder of the record touching the matter. Upon motion of the defendants, judgment upon the pleadings was rendered by the Circuit Court in their favor. The judgment was upon the merits.

Vinton Pike and J. B. Shackelford, for plaintiffs in error.
J. W. Coburn and B. R. Vineyard, for defendants in error.
Before SANBORN, THAYER, and HOOK, Circuit Judges.

HOOK, Circuit Judge, after stating the case as above, delivered the opinion of the court.

Courts of the United States are of limited jurisdiction, and the cases of which they have cognizance are specially circumstanced. Hence the presumption that a cause is without the jurisdiction of one of those courts unless the contrary affirmatively appears from the record. This doctrine was announced more than a century ago by the Supreme Court (Turner v. Bank, 4 Dall. 8, 1 L. Ed. 718), and it has since been frequently applied and unvaryingly adhered to. The question of jurisdiction is self-asserting in every case. It arises although the litigants are silent. Even their consent cannot authorize cognizance if fundamental grounds of jurisdiction are absent.

An attempt was made in the case before us to invoke the jurisdiction of the Circuit Court on the ground of diversity of citizenship. But the citizenship of the plaintiffs does not appear. An averment of residence is not an averment of citizenship. Robertson v. Cease, 97 U. S. 646, 24 L. Ed. 1057. Passing this, the defendants denied by their answer that the plaintiffs were even residents respectively of the states of Colorado and Idaho, and they also denied that they themselves were citizens of the state of Missouri. By the rules of the common law, objections to the jurisdiction of the court were pleadable in abatement only (Sheppard v. Graves, 14 How. 504, 510, 14 L. Ed. 518), but by the act of June 1, 1872, c. 255, § 5, 17 Stat. 197 (Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]), the rules of pleading and practice in actions at law in the Circuit and District Courts of the United States were assimilated to those prevailing in the courts of the states. Under the civil practice act of Missouri, if the want of jurisdiction is apparent on the face of the petition, advantage thereof may be taken by demurrer; otherwise it may be taken by answer, together with defenses upon the merits. Rev. St. Mo. 1899, §§ 598, 602, 604. In that state a general denial puts in issue every fact which it is incumbent upon the plaintiff to prove. Waiving the rule that residence is not synonymous with citi

zenship, nevertheless the absence of proof upon the issue of fact tendered by the answer required the court to proceed as though the plaintiffs' averments of the jurisdictional status of the parties were unsustained. The judgment was rendered in favor of defendants upon the pleadings, and no room is left for inferences or presumptions, even were it proper to indulge in them. The conclusion is unavoidable that the Circuit Court was without jurisdiction. Roberts v. Lewis, 144 U. S. 653, 12 Sup. Ct. 781, 36 L. Ed. 579; Southern Pacific Company v. Denton, 146 U. S. 209, 13 Sup. Ct. 44, 36 L. Ed. 942; Mattingly v. Railroad, 158 U. S. 57, 15 Sup. Ct. 725, 39 L. Ed. 894. The controlling facts in Roberts v. Lewis, supra, and those in the cause before us are substantially identical.

The judgment will be reversed, and the cause remanded to the Circuit Court with directions to dismiss the same, unless by appropriate proceedings under the direction of that court its jurisdiction is made to appear.

GENERAL ELECTRIC CO. v. WAGNER ELECTRIC MFG. CO. et al. (Circuit Court of Appeals, Second Circuit May 5, 1904.)

No. 105.

1. PATENTS-INFRINGEMENT-ELECTRIC TRANSFORMERS.

The Moody patent, No. 591,869, for an electric transformer, especially designed for high potentials, and having two independent ventilating systems for the circulation of air for cooling purposes, was not anticipated, and discloses invention. Claims 4, 5, 6, and 11, also, held infringed. Appeal from the Circuit Court of the United States for the Southern District of New York.

For opinion below, see 123 Fed. 101.

This cause comes here on appeal from a decree of the United States Circuit Court for the Southern District of New York affirming the validity of complainant's patent, No. 591,869, granted October 19, 1897, to W. S. Moody, for an electric transformer, and ordering an injunction and accounting.

James H. Bryson, for appellants.
Thomas B. Kerr, for appellee.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

TOWNSEND, Circuit Judge. The patent in suit relates to transformers with a voltage of twenty to thirty thousand volts. Its objects, as stated by the patentee, are "to so arrange the energizing coils that they are well insulated from the surrounding core and from each other, at the same time providing suitable means for ventilation," and "to provide a transformer having two complete and separately controlled systems of cooling, one being for the coils and the other for the laminated core." The only issue herein is anticipation.

The patented transformer comprises an outer inclosing case. mounted on a base provided with a chamber open at the bottom for the admission of air or other insulating medium. Within the said.