Willey v. ALASKA PACKERS'ASS'N.

(cid:127)and with a metal upper surface bridge through holes glass, which serves luloid around the rests 4 ho shows pered pad length luloid er structure. lower patent discloses Roos feature at ering is tubular from patent, and then cut nevertheless middle to bridges. bridge, realm of seamless celluloid on Figures seamless duce the articles. Beals gap towards the view tapering ment to gument exposed at furthermore, scribed inserted, are also the lenses question, a nose tubular, In the Schumacher To same patent would seem put upon the surface bridge, which covering covering patent, in thickness towards gap towards patentable offset supported old plaintiffs the skill tubes of frame, It is Day patent; art, thickness for in mind patents bridge and were not used or the expose the Schumacher hairpin the ends of the celluloid connected metal the ends expedient wherein the a curved skilled mentions Figures 5 persuaded (Fig. c.); while fairly bridge Both No. bridge, witness having seen suggested, for for ends for point described in center; but this of celluloid. extends across the bridge, which contend clamping celluloid, in departure. 222,229, wherein a structure effect seamless the suggest tho nose as a cushion worker in the art. This tho model patents and falls, rests in construction —structures the mechanic. in zylonite member Sundstrom, bridge; by passing the pad, both without seamless, and and Sundstrom, departed that he bridge two making metallic the patent that, obvious at the plausible, WILLEY making bridge, cutlery were inserting metal 6 he shows patent. think, pad bars the ends. Such covering deal bridge. types use of celluloid example, nose. The in pad under with the portion in the groove took which a wire any space or like that de- center, which the Figures contact, was is connected portions Schumacher at the Schumacher accomplish- change was bridge and nose with a who stated connection Day in view of patent sold, but I pad, the evidence, tapering covering Day The ar- devices, Molitor handles molded ALASKA Day in on bridge to re- entire metal a cel- ends. ends, init nose nose tube Day eye- cov- 1 to cel- the the are tract. am ta- Inc.; luloid tube over tho bridge, he, fringed by tho Shur-On costs and disbursements. foregoing of invention. A decree of both Proc. macher furnish medical by “wrongful is where tion for lates man’s executor a cause of action for death omitted the 4. Master executor for seaman’s death. sequent 5. Action ates 1. Death PACKERS’ ASS’N WILLEY v. for death from court tract clusive in action cal attention held not to as to latent ailments. tention to seamen of contract. ployers’ Liability on tort. Seamen Judgment seamen, My the article Judgment of state court Though Vessel owner’s failure Federal makes no cember common-law §Cal. bound that conclusion to furnish medical attention held con- §St. in seaman’s action for breach of con- seaman does vessel owner’s to seaman Clulee <@=I4(I) <§=27(I) On Motion Boutelle hearing, <§=l and servant whether in tho defendant Kirstein gap 8657), giving base'd <§=828(3) complaint. the medical attention ALASKA infringed tho claims attention was patent; 1925. Motion I— inquire ex delicto for N. patents “wrongful No. 18235. Duty —Failure summer January — patent Injured entered, space carrier’s does not not consider himself sick that seaman’s executor. of master or owner — metallic breach to furnish medical at- as to latent applies <§=87 PACKERS’ Judgment request conforming to the .of give the claims Optical Company, 5, 1926.) cause of in invalid conclusive person within of contract vio- with two-thirds did not that the center furnish medical —Federal valid, negligence, require inquiry of contract to provide seaman’s ac- it or bridge and neglect.” the Act, put action for may elect for want ASS’N. ailments, seaman’s give to torts. in Re- D. and in Optical not, breach Schu- medi- based issue issue por- 1§ sub- Em- sea- cre- De- cel- 2d, REPORTER’, lifetime, would have been cured if in and for the ley ment was again been furnished with App.) cisco, ing of action is involved. contention superior undertook the tender called the followed tendance second vessel, tract, sities.” fishing 3,1922, for the death following and testament of I.'C. suit for libelant. spondent. Packers’ Association. ant. Gregory, ley, of I. C. to there must feasance. elect contract. an arrestable feasance based on breach of was Action As KERRIGAN, District This contention Chickering H. In Tort tuberculosis her brought executor of which it owed to medical attention and necessities Alitak, where shall receive contracted a severe cold. -part, 238 P. 1087. Of course it cannot voyage. Alaska Packers’ respondent’s bottom, shipped as Kleppe, theory of action does in an party court of the rendered for the all <§=>27(I) and medical and provision: Star of Hutton, necessary a bad in a trial Alaska. while his management city some disease, of the second the executor deceased, against executor is that tuberculosis this eventually Goney, which was The articles Gregory and Donald libelant’s ease —Active cough, from which a seaman Finland, medical and fell engaged under this Suit not lie for of San active ex failure to court, last will i Kleppe timely duty, latter, who, Kleppe, for “All county state, overboard, delicto, Decree .by Charles G. support Association July, made respondent. that in this ease Francisco, followed. parties surgical medical atten- to furnish him the same a small and testament contained the of San Fran- negligence, part, Kleppe deceased total omission instead of respondent’s while clean- if thp for defend- * * cold, surgical at- an Alaskan jury judg- during appears willful, but This This and as operated last or mis- Alaska fishing neces- April (Cal. Wil- Wil- Cal., was The will mis- re M. U. er 955), where personal representative held to run sion, termined, mine. no one else. Such was the defense of Kleppe’s death ent sets upon the of evidence the law wrongful superior bility which in pendent does, of the Code section above referred to. posed by Fisheries employment, and breach of it statutory obligation to furnish respondent and cure is ^[3] omitted case, tort and not of contract. Thus lect of claims for terms is as is done ^[2] other does suit Cal., only operated injuriously entitled to they request necessarily situation. seamen over whom he has terms of a But, treating offered, Taken as an assertion of libelant’s is administrator upon this where no of master not persons brought. * no another”; medical up. affixes state was to those of his on contract. The applicable only section, caused succeed, possible by personal this has been argued', a seaman himself does not con- prevail. independent wholly court, The a cause of action for death he is 7 F. some As written is in privity. positive wrong persons resulted, it, Though manifestly in addition to question attention and such, by merits its essence statute, duty I held in Cresci v. Standard the case as hitherto unde judgment (2d) however, record, his executor. empowered event from the fault of or executor reference statutes, (or owner) does S. contractual. The alleged, There is estoppel unaffected contract, on whose decedent, wrongful which on behalf if respondent can have no 377, the incidents which contract of marine within the (The rights, to which finding not words, to the effect that conclusive, similar no libel, a vessel owner’s- but fall before upon to his by charge, merely enable to have been Iroquois, from his creates a lia must also be also was maintenance wholly to furnish with whom 48 L. Ed. behalf abundance' enforce. to eases of therefore, construed, where of “death respond-' decedent, evidence meaning superior its deei-' likewise,' changes Kleppe; express enforce wheth instant is the rights Proe. jury own' neg fact “by im this de but the. he ( whatever, trict Court extensive as sider grounds, and on tho statement of Packers’ tered herein must be ailments. my ligence. rises tended nificance. The section tofore rendered rier, hence that the resentatives al. Liability road but in Furthermore, ciency, tained contract of Hero of the act said contract as such. different evidently fully” officers, agents, or ed, to eases of Code, applicable reported Plaintiff has Other “The federal Libelant maintains act, neglect, created, like that employee, employer’s liability for This amounts to to have out of word, himself the word employees sois in a my opinion as its name intend from the duo my purely result, Act No Ass’n, believing points made construing for “death add This was employers, ordered. portion however, I used of and in no will take employment, an Motion for eases, been violated has 1 of the federal to its' consideration. sick, law agents, officers,and death caused “wrongful” contract of obligation to Appeal no such dismissed, one supra, (and petitioned for a been history law. give, stressed right implies, shows that in imports, employees of say facts saying that as due care not to negligence. C. C. applies, directed, seamen) by respondent omission tort. that under this- act makes way to inquiry liability legal the least is artificial. holding "WILLEY any particular sig- cannot origin the word section incurred Willey Alaska contract has been left and a decree employment, here as defect or insuffi as action is by wrongful act 8657), P. agreement implication well, as before stat- a term of On opinion act, Congress in each produces is immateri- regulate Cal. breach® body shows, intended as one con- Employers’ any of itself, rehearing, California complaint v. ** whole to latent technical costs. [a] the libel “wrong- depends held so fenses which had come to be ALASKAPACKERS’ ASS’N § do given; injure result v. here- o Dis- act does not rail- neg- rep- ployer out; R. case car en- *” is tract recovery may be injured instant case then ical tract alleged gation. if tho decedent had tract is insufficient. which is on all fours with As a all way Co. medicine or had been founded on negligence or misfeasance Bishop H. Gilbert 169, N. case Y. there a common-law 480. But so distinction versally cover, contract, and not question. An omission to fully employee’s cause Central Southern Galveston, Houston Cal. nor diminished Cooley, [5, Whenever a elects an action ex Hennegan, C. Libelant Super. 6] But On no himself, legal liability 13 E. attention, general rule, because reasoned L. performance Galveston, fails to Pollock, is held that a tort Ry. tho same time is also violation one of 453. There was 758; v. a willful Pacific not be treated as his contract have been omitted for the decedent done an actually a total omission to service, Manufacturing Co., 145 Mass. answers this Hennegan, infra; authority 465), depend upon 33 Tex. important opinion, allowed. is to take merit the active thereby.” Shearman Houston, L. R. A. Co. 87 upon a is libelant entitled to re- there as neglect and I take point and to be been furnished and is in tort & breach of contract action is for breach of Arnold v. N. J. delicto will lie. (C. only Southern action under C. has in libelant’s unsldllfully must be some active the defense employer - employee C. If such he results (N. (Tuttle as ono & Southern neither contractual obli- the terms Law, negligence. in this case was App. 314, fault of & been held, A. thought saying that the Rounsaville negligence, and by respondent, of nonfeasance well-grounded decisive. S.) Redfield, perform. present to be the law Clark, 9) Chalmers Railway certain de negligence. discovered in a increased, treated, of do, conten no one unjust. an em tort, a Hence, George a con 94 A. 45 N. pridr C. Rail note. med care case. rule, con con uni bad P. v. v. REPORTER, 2d Wright Thacher provision and no other of state and Thomas A. Thach er, or federal all of San applicable law is to his case. for claimant. Rehearing denied. KERRIGAN, District These two cases, being facts, alike in their were consoli- They dated for trial. are actions for dam- ages, and shipments involve two of fish meal Baltimore, Md., to Los Angeles, THE WILLFARO.* Portland, Or., and to respectively. The Pa- THE WILLSOLO. cific Guano Fertilizer WILBUR et al. WILLIAMS S. S. CO. of fish or fish meal. It was taken aboard Willfaro, the steamer N. D. May 23, 1925.) operated by claimant, the Williams Steamship Company, Nos. 17931. fish meal were stowed in the No. lower hold. Shipping 1. ships <s=»l23—Owners of must use When the Angeles, vessel arrived at Los due goods care to ascertain nature of- 23, 1922, October it was found that the meal shipment fered for and exercise due care in the lower the hold had become handling. their remaining 3,893 bags heated. The ships were stow- . Owners of use due care to ascertain istics of consider nature and character- ed in places four other in the vessel in smaller goods shipment, offered for and to ex- quantities, they damage. suffered no handling, including ercise due care in their In the 1,- other ease the adoption methods. bags of fish meal in the steamship Will- Shipping <§=>123 2. meal stowed in low- —Fish solo, operated by the Williams Steam- er hold without held not stowed ventilation ship Company. This lot was stowed No. according general usage. with caution Upon lower hold. arrival in San meal, In action recover for fish Portland, 17, 1922, on October during shipment, which had become heated evi- stowage dence held to show that in lower hold discovered that this fish meal also had was. without sufficient ventilation was accord- heated, seriously become and its market value general usage. ance with impaired. The contention in these claimant Shipping <©==>!23,138-Shipowner liable held negli- meal, fish damage complained cases is that the of re- gently stowed in lower hold without sufficient sulted inherent vice of the meal. ventilation. hand, stowing ship Owner of held is that the owners of the vessels violated the fish meal in solid blocks in lower hold without carriage by negligently contracts of ventilation, and, and im- (Oomp. the Harter under 8029-8035), damages. St. liable §§ properly stowing cargo, which heated, thereby devitalizing thereof became Shipping@=>(38— Shipowner protected is not the fish rendering meal and it unmerchanta- negli- statute fire from fire caused gent cargo. stowing of ble. ship meal, Fish com- scrap, boiled, or fish is fish executive officer pany acquiesced stowing large fish 'meal the oil and the moisture ex- almost hold, in lower insufficient blocks tion, shipowner ventila- tracted; ground up. then it is dried and pro- be entitled to oil, Aside from some moisture and it contains (Rev. [Oomp. tection of fire statute St. 8020]), fire, any, nitrogen. there was used as chicken feed and as spontaneous result of combustion. a 'fertilizer. There is no difference between scrap, scrap fish meal and fish except that fish actions, Consolidated is coarser than fish meal. contains Pacific Guano & Fertilizer moisture, freely oil and li- admitted Willfaro, steamer the Williams properly belants if fish meal is not stow- Company, Steamship claimant, may heat, ventilated, .ed Company against the steamer Wilbur-Ellis lowering of its commercial value. Willsolo, Steamship Company the Williams argues claimant meal Decrees for libelants. claimant. customary these cases was stowri in the man- Derby Single Single, and Carroll all ner, heating and that developed for libelant Pacific consequently the result of inherent vice Guano & Fertilizer Co. commodity. Claimant’s witnesses in n Sawyer Evans, Cluff and Daniel W. effect testified that the meal in each instance all of San Francisco, for libelant Wil ship- was stowed as the claimant and other pers, bur-Ellis so far knew, stowed *Decree affirmed 9

Case Details

Case Name: Willey v. ALASKA PACKERS'ASS'N.

Court Name: District Court, N.D. California

Date Published: Jan 5, 1926

Citation: 9 F.2d 937

Docket Number: 18235

Court Abbreviation: N.D. Cal.