I'ARMER
e.
NATIONAL LlJ'E 48S'N.
829
Marlow, WllS the negligence of the deputy marshal, Johnson, in the per· tQrmance of his official duty; and it may be a question whether the depnty, Johnson, was in the line of his official duty at all, so that the marshal can be held to be responsible as claimed here.. But, aside from that, can the statute in question be construed to include a cause for alleged official negligence, such as is made in the plaintiffs' petition? It is the complaint is not only of the negligence of the deputy marshal, Johnson, but that negligence is charged also upon the marshal himself, althollgh he was not there at the time of the death of the prisoner, Marlow, and was not an actual participant in the violence resulting in the.death. But it is charged in a somewhat elaborate statement of the facts ,and conditions up to the violent attack upon the prisoners in charge of the deputy marshal, Johnson, that the marshal knew, or will be held to have known, the condition of the public mind at the time; the danger of mob violence to which his prisoners were exposed; and that his deputy, Johnson, was a very unfit man for the ex· ecution of the duty with which he was charged; in fact, that he was in :sympathy with the mob, and unfaithful to his trust. Concede that,and iUs stated strongly and fully,-and yet can it be held that this action here is maintainable against the marshal, upon his official bond, because his deputy betrayed his trust, or because the marshal was at fault, and did not use good judgment in the selection of his deputy to perform this duty? If an action is given on account of such wrongful conduct, negligence, or whatever it may be called, on the part of a United States marshal, then why not carry the principle further, and hold the appointing power of the marshal, if he-the marshal-be an improper maJ} for the discharge of the important and delicate duties intrusted t<;> him, responsible fo;: making an improper selection for the discharge of such duties; where negligence in their performance results in the death of a party. The principle contended for is wrorig in the application ,which is sought to be made of it, and the statute cannot fairly be held to mean more than that an action is given and may be maintained against persons for their own wrongful acts and negligences which !lrethe cause of the death of a party, and not the constructive, indirect, and remote cause.
FARMER
NATIONAL LIFE ASS'N OF HARTFORD, CoNN.
(Ctrcuit Gourt, E. D. New York. May 10, 1892.) 1. ll'Oll1l:Iq,N ;IN'3URANCE COMPANIES-SERVIC!! ON STATE SUPERINTENDENT-WAIVER.
a.
The appointment of the state superintendent of insurance as the attorney of. nonresident insurance company for the purpose of receiving service of process, as required by Laws N. Y. 1884, c. 346, S 1, does not authorize him to accept service by mail, and such service is void.
SAME-GENERAL ApPEARANCE-REMOVAL OJ' CAUSES.
The 11ling of a petition and bond for the removal of 8 cause from 8 state to .. federal court, and the proceedings thereon. do not constitnte such a general appearance all will prevent the federal court from letting asid.. the lIervice as illegal and
· On tnotion:to set aside'service of summons;" :Granted. ·'FA. stihiffioDS was issued ina suitin the New York supreme court in Kirlglfcollnty by Thomas Farmer against the National LifEl Association of Har1Jotd, Conn., aConne'.ltictit life insurance company. The summons was mailed on December 1., 1891, in an envelope 'directed to the superintendent of the insurance "(}epartment of the state of New York. The paper was delivered at the iOBice of the superintendent of the insurance department, December 2, 1891. He telegraphed to the plaintiff'ls attorneys that he required a fee of two dollars befol'ehe acknowledgM the service of the paper. Thereupon the plaintiff's attorneys sentbim the fee of two dollars as requested" by him.. In return, the superintendent of the insurance department sent the plaintiff's attorneys thef61l0wing paper. "INSURANCE DEPARTMENT. ALBANY, December S, 1891. "".ltfCfJ8rs. Judge and Durack, No. 873 Fulton Street, Brooklyn, N. Y.SIR:'! admit the service of process on me as attorney for the National Life .A!ssoclationof Hartford, COllnecticut, made lJy yOIl inlJehalf of Thomas Farmpl' of - - ',pnrsnant to chapt/!r 346. Laws of 1884. 1 have sent to saitl COlli pany by rel{istered mail to-uaya copy of the paper served on me, fee $2, the of whil:h is hereby "YouI' obedient servant, "JAMES F. PIERCE, Superintendent." Chapter 346, § 1, Laws N. Y. 1884, provides that"No fire. lire marine,. life, or casualty insurance company or association orp;ltllized or incorporlltl'd \Jnder the laws. ()f any other state of the United ehalJ,directly or indirectly, issue States, or of any popcies. take risks. or transact business in this state. until it has complied with the inslll'ance laws, and having first appointed iIi writing the superintendent of the insurancede'partrnent of this state to be the b'ue Hnd lawful 'attorney of stich company j'n lind for this etate, upon whom all lawful proCeSS in 3ny at!tion or proceeding against the company may be served with the etl't¥lt as if the company or association exist..d in this state. A certificate of such appointm..nt" duJy certified and authenticated. shall be fil..d in the office or the. superintendent of the insurance dppal'lment. and copies certified by him shall be deem..d surticient evidence in regard thereto. Service upon stich attorney shall thereafter lle deemed a service upon the company or association. " The defc:mdant had previously filed in the office of the superintendent of the insurance department a paper designating him as its attorney in the exact language of the statute. The defendant filed a petition and bond removing the case into the circuit court of the United States for the eaE'tern district of New York; and thereupon its attorney, appearing specially for the purpose of the motion, obtained.an order to show cause »,hy the service of the summonsshbuld not be'set aside. The affidavit upon which the order was granted stated the facts above set forth.
Roger Foster, for the motion. The filing of a petition for tile removl1l a. cause "froin a state to a federal court, and the proceedings upon such a petition. are not the..eqllivalent of a. general appearance; and, after such a removal. the defendant may move to set aside the service of proct'ss upon the ground of a defect or irregularity in
of
J'A:RDRV.NATIONAL LIFE ASS'N.
'831.
tbeproce¥ or in the service of the same. Parrott v. Insurance 00., 5 Fed. v. A(orris. 11 Fed. Hep. 582; Small v. Montgomery, 17 Fed. Rep. $65; Miner v. Ma1'kham, 28 Fed. Rep. 387; Perkins v.lIendryz, 4O.Fed. Rep. 657; Gold,en v.Morning News of New Haeen, 42 Fed.l{ep. Water 09. v. Baskin, 43 :Fed. Rep. 328; Olews v. b'on 00.,44 Fed. Rep. 31; Reifi,nider v. Publishing 00.,45 Fed. Rt>p. 433; Bentlif'v. Oorpa1:q,tion, 44 :Fed, Rep. 667; Est.s y. Insurance 00..· (N. Y. Com. Pl. trial term, Nov. 17, 1882,BEACH,J.,) Daily Reg. See, also, Freidlande1' v. Pollock. 5 .cold. 49i); Forrest v. Railway 00., 47 FI'c1. Rep. 1. , The service by mail was insutticient. The Code of Civil Procedure requires "the:delivery of a copy" upon the person to be served. See sections The ,statute requires that service be made upon the superintendent 431, of the department in the same manner. In Oland v. Insurance 00., (Md. JUl'!e 13, 1888.,) 14 Atl. Rep. 669, the Maryland insurance act of required service on the agl'nt designated for that purpose. It was service upon Blocal agent, togt>ther with the mailing of a held copy tl! the ageqt d"signated, was not sufficient service· . The superinj;endent of ,the insurance department bad no power to waive an irregularity in the service. or to give any admission of sprvice. If he has this power, he might date ba,ck his admission so as to pnt the defendant in the statute of limitations. It could never have been the default, or intl'ntiun oUhe legislature to thus empower him to prE'judice the rights of a corporate litigant. If, under the statute, the superintendent of till' insurance department has the r,ght to any defect in the service of the proct>ss, or any uf the requirements of thesttttute, he has the right to waive them all. There Can be no resting place between the two horns of this dilemma. lf be has the right to waive a defect arising from the omission of the plaintiff to deliver a copy of the summons to him personally, he has a right to waive the omission of the plaintiff to furnish him with any copy of the sumllJons at all, and may thus, Without any notice to the insurance company, render· it liable to a jUdgment by dt>fault against it in ignorance of its rights, or compel it, in order to avoid such jUdgment by default, to serve a general appearance, which maf prejudice its rights to avail itself ot the statute of limitations or otherwise, and waive any irremediable defects in the service or in the summons, itself. This opportunity for collusion on the part of the plllJIic officer with the plaintiff, a citizen of his own state, who may have had important IlOlitical influence in securing his appointment, it could never have been the intention of the statute to bestow, nor could it have been the intention ot the defendant by its designation to grant. Had the legislature attempted to give him such power the statute wonld be unconstitutional and void, as taking. away defendant's property witbout due prol'ess of law. A private power of attorney, such as was given by the defendant in pursuance of the statute, would not authorize such an admission or waiver. A power of attorney is always strktlyconstrued. and even general words are limitt'd by the special language which precedes them. Oraighead v. Peterson. 72 N. Y. 279; Rosslter v. RQssite1', 8 Wend. 491; Danby v. Coutts, 29 Ch. Div. 500; 1I0dge v. Oombs, 1 Black, 192; Whitly v. Barker, 1 Root, 406. ;'Writ of error against the judgment of the county court in a certain cause in which Col. Cleaveland was attorney to said Barker, who lived in this state. Cleave· land indorsed upon the writ of error, as attorney to Barker, that he acknowlegt'd said writ bad bt'en duly sE'rved, without any speCial authority from Barker to do it. Barker pleaded in abatement of the writ that it had never been served upon him as the law reqUired. Plea in abatement adjUdged sufficient. 'fhe party is not concluded by the indorsemeut of the attorney in sucb case, without special authority." Millay v. Whitney, 613 Me. lJ22. Authority to "get cargo bonded; will hold bondsmen barmless, and
832
J'EDERAL REPORTER. voL 50·. ;
eome'down, If necessary, ,)-does not authorize a receipt 'to shel1l't In prinelpal'sBll!fie acknowledging attached property to be insured by Il!lfendant, and promiSing to deliver it to sheriff on demand. La.qow v. PattersOn, 1 Blackf. 252. An authority to compromise all difference and disputes, and to execute and sign in principal's name any release, covenant, or conveyance of part of principal's estate, and to give and receive discharges, receipts, etc., does not authorize the agent to confess jUdgment in the Ilame of the principal. Moort v. Oircuit JUdge. 55 Mich. 84, 20 N. W. Rep.801. Authority given by" corporation to an agent to accept service "in actions on any liability or indebtedness incurred or contracted" by the corporation does not authorize his acceptance of service in garnishee proceedings. Statutory substitutes for personal service are always strictly construed. .Amy v. Wate1'town, 130 U. S. 301, 9 Sup. Ct. Rep. 530; Pollard v. Wegener, 13 Wis. 569; W1'ight v. Douglass, 8 Barb. 555; Ooal 00. v. Sherman, 8 Abb. Pro 243, 245; Oook v. Farren, 34 Barb. 95. It has been held that the statute now before the court for construction must be strictly construed. Richardson v. Insurance 00., (Sup.) 8 N. Y. Supp. 873. In Read v. French, 28 N. Y. 285, 295, it was held that an admission by a defendant of service of a summons and complaint on him, which did not state that the service" was personal" by the delivery of a copy to him, did not authorize the entry of judgment by default against bim.. Ooal 00. v. Sherman, 8 Abb. Pro 243, 245, per SUTHERLAND, J. : "Proof of service of the summons in the manner prescribed by the Code, substituted for such appearance, is necessary, without voluntary appearance, to give the court jurisdiction." In W1'ight v. Douglass, 3 Barb. 555, 574, it was held that personal service on the trustee of a foreign corporation must be made. James P. Judge, opposed. The superintendent of the .insurance department is the head of a large busi. ness department of the state government located at Albany, N. Y. The purpose of the statute was to provide a place where all process in cases against foreign insurance companies could be served, and does not imply that the executive thereof should be personally, physically served, in whatever portion of state or the United states or elsewhere such superintendent may be, when, relief by a citizen of tbis state is sought by the commencement of an action, but clearly him the right to admit service of process on him as fully and completely as the defendant could itself. The superintendent, as attorney of .the defendant corporation, had the right to admit service of process, and waive defects in the service of the same. In case this motion is granted, the defendant will claim that ODe year has elapsed since the maturity of the policy, and that consequently the action is barred by the limitation clause contained in the policy. BENEDICT, District Judge.
The motion must be granted.
BRUSH .ELECTRIC CO. V. ACCUMULATOR CO.
833
BRUSH ELECTRIC
CO. et al.
ACCUMULATOR
(Oircwl.t Court, D. New Jersey. 1.
March 16,1892.) DECISIONS IN
PATENTS FOR INVENTIONS-PRELIMI1UBT INll1NCTJON-El!'l!'BOT Oll' OTHER CIRCUITS.
Where letters patent have been twice sustained in another circuit a preliminary injunction against infringers will issue as a matter of course, and such injunction will not be denied because of ex parte affidavits of alleged new evidence in respect to anticipation, especially when it appears doubtful whether such evidence was not known to the defendants in such prior cases, and that the defendant corporation herein was closely allied with the corporations defendant in the prior and contributed to the expenses thereof, either directly or through its individual stockholders. Where, however, such injunction will seriously affect defendants' business, and it appears that an appeal has been taken from the decisions in the other cases, the court will require complainants to give bond to secure payment of damagell in case the injunction is subsequently dissolved.
S.
SAME-WHBN BOND REQUIBBD.
In Equity. Bill for infringement of patents. On motion for preliminary injunction. Granted. R. N Kenyon, W. C. Witter, and Charles E. Mitchell, for complainants. F. H. Betts and H. G. Ward, for defendants. GREEN, District Judge. After careful consideration of the matters presented by counsel upon the argument of this cause, I am constrained to grant the motion of the complainants for a preliminary injunction upon the terms hereafter stated. The letters patent which it is charged in the bill of complaint the defendants have infringed have been, as to all their claims now in controversy in this suit, twice sustained, after protracted and desperately fought contests, by the circuit court for the southern district of New York; and the reasons for the conclusion reached have been fully and clearly given by Judge COXE, who heard the argument of the causes, in very able and learned opinions. Brush Electric Co. v. Julien Electric Co., 41 Fed. Rep. 679; Brush Electric Co. v. Electrical Accumulator Co.,47 Fed. Rep. 48. The rule is well established that where, as the result of a contested controversy, lettem patent have been sustained, preliminary injunctions will be granted against infringers as a matter of course by the court which has adjudged the letters patent valid, and as a matter of comity by the federal courts in other circuits. The defendants seek to avoid the operation of this rule in the case at bar by alleging that they have discovered new evidence since the litigation in the New York circuit, which will effectually destroy the validity of the letters patent which they are charged with violating. This evidence they set forth at length in ex parte affidavits. It relates to the alleged anticipating invention of an electric battery by a Dr. Blanchard, of Vermont, claimed to be in all respects similar to the invention of Brush, secured to him by the letters patent in controversy. This alleged invention, it is said, antedates the invention of Brush nearly 20 years. Whether it can properly be called "new v.50F.no.10-53