failing in that, he will not be permitted to recover damages for injuries which he brings upon himself. If the deceased knew that the bridge was dangerous, from information received from Crowley or Davidson, or from any other source, and did not avail himself of the knowledge acquired for his own safety, and if he failed to exercise that reasonable care for his own preservation as an ordinarily prudent person would have exercised in a similar situation, and under like circumstances, and his injuries resulted therefrom, then the plaintiff would not be entitled to recover, and your verdict should be in favor of the defendants.

The plaintiff in this case does not contend that the injuries of his son resulted from any act of negligence on the part of the conductor, Davidson, and therefore that feature of the case will not be submitted to your consideration.

The questions, touching the alleged negligence on the part of Sale, the telegraph operator, and contributive negligence on the part of the deceased, Hall, are questions purely of fact, and remitted solely to your determination, and you must form your conclusions in reference to them from a consideration of all the facts and circumstances before you. You have heard the testimony of the witnesses, both for plaintiff and defendants, and have observed their demeanor upon the stand, and their manner of testifying. Of their credibility you are the exclusive judges, as well as of the weight to be attached to their testimony. With these principles of law as a guide, consider the case, and render such a verdict as the law and testimony may warrant. If, in view of the evidence and the foregoing instructions, your finding should be in favor of the defendants, you will go no further, and simply render a verdict in their favor; but, if you find in favor of the plaintiff, you will proceed to determine the amount of damages which you should award him, and upon this question it will be necessary for the court to give you instructions. This suit, you are aware, is brought, not by the person injured in the bridge disaster, but by his father. The measure of damages in the two cases is entirely different. In both, the amount is left largely to the discretion of the jury, but that discretion must be exercised in view of the evidence, and should not be a matter of mere guess-work and speculation. In suits of this character, instituted by the father for the negligent killing of his son, the father is not entitled to recover anything for physical suffering, or mental pain and anguish, endured cn account of the son's death; nor can he recover damages because of the loss of the son's society, (see Railroad Co. v. Barron, 5 Wall. 105; March v. Walker, 48 Tex. 375;) nor, under the facts of this case, is the plaintiff entitled to recover punitive or exemplary damages. The statute, which authorizes the maintenance of suits "for injuries resulting in death," provides that "the jury may give such damages as they may think propor tioned to the injury resulting from such death." Rev. St. art. 2909. is necessary for the plaintiff, in cases of this kind, to show a damage of a pecuniary nature; yet such damages are not to be given merely in reference to the loss of a legal right, but may be calculated with reference to the reasonable expectation which the plaintiff had, resulting from his

It

condition, and the disposition and ability of his son, during his life, to bestow upon him pecuniary benefit as of right, or in obedience to the dictates of filial duty without legal claim. Railroad Co. v. Kindred, 57 Tex. 498. The damages in this case, if any are awarded, being for the pecuniary loss only, sustained by the plaintiff on account of the death of his son, it is incumbent upon the plaintiff to prove such facts and circumstances as will enable the jury to return a verdict upon the evidence which would approximate reasonable certainty; and the testimony may include the circumstances of the deceased son, his occupation, age, health, habits of industry, sobriety, and economy, his skill and capacity for business, the amount of his property, his annual earnings, and the probable duration of his life. Railroad Co. v. Cowser, Id. 304. And so the testimony should include the circumstances of the plaintiff, his age and health, the amount of his property, and the probable duration of his life. How long, gentlemen, under the testimony in this case, will be the probable duration of the plaintiff's life, dating from his son's death, and how much pecuniary assistance would he have had a reasonable expectation of receiving from his son, had he lived? These are important questions for you to consider, and their solution is involved in some difficulty. It is shown by the testimony that, at the date of his son's death, plaintiff was 57 years old, and in feeble health, and that prior to that time the son had sent him sums of $40 or $50, as plaintiff had asked for them. The testimony further shows that the son had urged plaintiff to move elsewhere, that is, change his residence for his health, -and promised and pledged plaintiff to give him $40 or $50 per month. Calling your attention to that promise on the part of the son to give plaintiff that sum of money monthly, you are instructed that the son, had he lived, would not have been compelled to pay that amount of money monthly to his father. He would have been under no legal obligation to do it, but could have paid it to him or not, at his option. In connection with the question of damages you may also regard the contingency of the son's marriage, had he lived, and whether that circumstance would have affected-either in increasing or diminishing-the sum which the son would probably have contributed to the support and maintenance of the plaintiff.

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Consider all the facts and circumstances in evidence, and return such a verdict as you may deem right and proper, in view of the testimony and these instructions.

FOOTE v. MASSACHUSETTS BEN. Ass'n Of Boston.

(Circuit Court, N. D. New York. June 18, 1889.)

SERVICE OF PROCESS-OBJECTIONS WAIVED.

A general appearance by the defendant in an action is a waiver of the objection that the service of summons on him was irregular. because not made in the district of which he was an inhabitant, as required by act Cong. March 3, 1887.

At Law. On motion to vacate certain orders.

William Blaikie, for the motion.

J. K. Hayward, contra.

WALLACE, J. This action is brought upon a policy of life insurance. The requisite diversity of citizenship to confer jurisdiction of the controversy upon this court exists between the parties; the plaintiff being a citizen of this state, and the defendant a corporation of Massachusetts. The action was commenced by the service of a summons upon the agent of the defendant designated to receive service of process within this state, pursuant to the provisions of the state laws requiring foreign insurance companies doing business here to designate such an agent. Before the time for answering expired, the defendant, by its attorney, entered a general appearance in the action. This was in November, 1887. From that time until March, 1888, no formal proceedings appear to have been taken in the action, but negotiations seem to have been carried on between the parties, and the time for serving pleadings was extended from time to time by stipulation between the attorneys. In March the defendant made an application to the court for leave to substitute another attorney in lieu of the one who had appeared for it, and to withdraw the notice of appearance which had been served by him with leave to enter a new appearance nunc pro tunc. The plaintiff's attorney did not receive. notice of this application, owing to his absence from the state, and nc one represented the plaintiff when the application was brought to a hearing. The application was granted, and leave was given to the defendant in effect to enter a special appearance for the purpose of moving to vacate the service of the summons which had been made upon its agent. The defendant, by its new attorney, then made an application to the court. to vacate the service of the summons upon the ground that the defendant was not an inhabitant of the district in which the service was made. The plaintiff's attorney failed to receive notice of this application also, owing to his absence from the state. No one appeared for the plaintiff upon the hearing of that application, and the court made an order dismissing the action, and vacating the service of the process. Notice of both applications was duly served by mail upon the plaintiff's attorney by the attorney for the defendant, and the orders authorizing the special appearance and vacating the service of the process were in all respects regular. A motion has now been made for the plaintiff, upon affidavits explaining and excusing the neglect of her attorney to appear upon the

hearing of the applications, to vacate the orders. Although the affidavits show quite grave laches on the part of the plaintiff's attorney, they are not of such a gross character as to be wholly inexcusable; and it would be a great hardship upon the plaintiff to deprive her of an opportunity of having the questions involved in the action disposed of upon their merits. The policy in suit contains a condition which provides that no suit shall be brought upon it unless commenced within one year from the death of the assured; and, as the suit was not commenced until the year had nearly, expired, the defendant apparently would have a complete technical defense to any action upon the policy brought after the order dismissing the present action was made. Undoubtedly, under the provisions of the act of March 3, 1887, the service of process upon the defendant, as made in this suit, was irregular. That act confers the privilege upon a defendant to be sued by the service of process upon him exclusively in the district of which he is an inhabitant. Consequently jurisdiction of the person of the defendant, in the sense that effective service of process is requisite to such jurisdiction, was not acquired by the service made here. No doubt, however, is entertained that the privilege of the defendant may be waived just as it could have been under the first section of the act of March 3, 1875 which was a repetition of a provision of the judiciary act of 1879. Under the former acts it was always held that, notwithstanding the provisions requiring process to be served in the district only in which the defendant could be found, if it was served elsewhere, and the defendant appeared generally in the action, the court had jurisdiction to proceed; and the appearance of the defendant was a waiver of the right to raise the objection. It is unnecessary to cite the numerous adjudications to this effect. It is sufficient to refer to one in this court,-Kelsey v. Railroad Co., 14 Blatchf. 89; and to two in the supreme court,-Jones v. Andrews, 10 Wall. 327, and Atkins v. Disintegrating Co., 18 Wall. 272. The latter citations are referred to especially because they meet one of the positions taken in the present case by the counsel for the defendant. He contends that an appearance, not accompanied by a plea, answer, or demurrer, is not a waiver of the objection; and cites the case of Reinstadler v. Reeves, 33 Fed. Rep. 308, as sustaining his position. With the exception of that case no authority in support of this contention is found in the decisions of the federal courts. In Jones v. Andrews, the only appearance of the defendant was by a motion to dismiss the bill for want of jurisdiction apparent upon the face of it, and the court held that by moving to dismiss the bill for want of equity the defendant waived the objection that he was not properly served with process, saying: "After this the question of jurisdiction over the person was at an end." In Atkins v. Disintegrating Co., there was an entry in the record of an admiralty case that an attorney "appears for the respondent, and has a week to perfect an appearance and answer," and it was held that such an appearance precluded him from raising the objection by answer of want of jurisdiction of the person. If the defendant in this case had appeared specially for the purpose of moving to vacate the service of the summons it would

have saved its right to object to the jurisdiction. Not having done this, and having continued to recognize the action as properly brought from November until the following March, it should be held that the defendant has waived its privilege to object. The defendant has been subjected to expenses consequent upon the default of the plaintiff to appear when the two orders were made. The questions that have been discussed now could have been properly disposed of at that time. The defendant should be indemnified against the unnecessary expense which it has thus been obliged to incur because of the laches attributable to the plaintiff. The order dismissing the action will be vacated, and the order substituting a new attorney for the defendant modified by striking out that part of it which in effect withdraws the general appearance of the defendant, upon condition of the payment by plaintiff to defendant of its expenses incurred by the laches of the plaintiff's attorney, to be ascertained, if necessary, by a reference to the clerk.

CONSOLIDATED ROLLER-MILL Co. v. COOMBS.

(Circuit Court, E. D. Michigan. May 20, 1889.)

1. PATENTS FOR INVENTIONS-MECHANICAL EQUIVALENTS.

A patentee, whose claims have been restricted by the action of the patentoffice, is not thereby limited to the exact language of his substituted claims, nor deprived of the benefit of the doctrine of mechanical equivalents.

2. SAME-INFRINGEMENT-PRIOR STATE OF THE ART.

What will be considered an infringement of such claims depends largely upon the state of the art as it existed at the time the patent was issued. 3. SAME-CONSTRUCTION.

The prime object in construing a patent should be to preserve to the patentee his actual invention, if this can be done consistently with the language he has himself chosen.

4. SAME-ROLLER-MILLS MACHINERY.

Patent No. 222.895, issued to Gray for an improvement in roller grindingmills, is valid, and is infringed by what is known as the "Mawhood Machine, although the devices used in the latter differ in form and location from the patented devices.

5. SAME-NOVELTY.

Patent No. 289,518, issued to Daniel E. Dowling for a feed mechanism for roller-mills, is invalid for want of novelty.

6. SAME.

Patent No. 274,508, issued to D. W. Marmon for a simultaneous adjustment of both ends of the counter-shaft of a roller-mill, is invalid for the want of novelty, and also because the same device had previously been patented to Marmon and Warrington.

7. SAME-RIGHT TO PATENT.

A concession of priority by a patentee to a later applicant for a patent upon the same device, after the prior patent has been issued, does not justify the issue of a second patent.

8. SAME-REISSUE.

No one can take out a patent, either severally or jointly with another, for an invention, and, after the patent is issued, without reservation in his original application, obtain a second patent, with broader claims, for the same device.