(273 F.)

that afterwards he examined the place where Koso was hurt, and found about a bushel of fine dirt, with no lumps as big as his fist; that it was waste, soft material; that the roof was in good condition, just a little hole where the stuff had fallen from. On cross-examination the witness said that the small hole in the roof was made by the bushel of rock; that the earth was perfectly even, and that the hole was not there when he put Koso to work; that when he met Koso he did not complain of pain or say he was unable to walk. Several physicians testified in defendant's behalf.

At the conclusion of all the evidence defendant moved for a directed verdict. The motion was denied, and exception was saved. The court submitted the case to the jury, and verdict was found for the plaintiff.

Favour & Cornick, of Prescott, Ariz., for plaintiff in error.

F. C. Struckmeyer and W. L. Barnum, both of Phoenix, Ariz., for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT, Circuit Judge (after stating the facts as above). [1] It is argued that there was no evidence tending to show that plaintiff was not negligent, or that his negligence did not cause the accident. The Employers' Liability Act of Arizona (chapter 6, title 14, Revised Statutes of Arizona of 1913, § 3154) provides that, to protect the safey of an employee in mining, the employer shall be liable for the injury— "caused by any accident due to a condition or conditions of such occupation, in all cases in which such death or injury of such employee shall not have been caused by the negligence of the employee killed or injured."

By section 3159:

"The question whether the employee may have been guilty of contributory negligence, or has assumed the risk, shall be a question of fact and shall at all times, regardless of the state of the evidence relating thereto, be left to the jury, as provided in section 5 of article XVIII of the state. Constitution: Provided, however, ** the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee."

Section 5, art. 18, of the Arizona Constitution is as follows:

"Sec. 5. The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury."

The statutes cited were considered in Calumet & Arizona Min. Co. v. Chambers, 20 Ariz. 54, 176 Pac. 839, where the court held that it was incumbent upon one who relies upon the Employers' Liability Law to prove that while engaged in the performance of duties required of him he was injured, and that the injuries were caused by an accident due to a condition of such employment, and not caused by the negligence of plaintiff.

Plaintiff's evidence met the obligation imposed. Assuming that he was telling the truth, he was on his first shift, shoveling waste from the floor where he was told to work. The place was about 15 feet from the face of the drift; he did not know the height of the tunnel, except that the top was too high for him to reach with his pick; there was no timbering at the point above him, and while bending over to get a shovel

full of waste there was a cave-in from above, waste fell upon him, and he was injured. If credible, this evidence negatived any reasonable deduction that the accident was caused by negligence on the part of the plaintiff, and the court correctly held that the case was one for submission to the jury under appropriate instructions. If it had appeared that it was part of the duty of Koso to pick down the loose rock, as well as to collect it after it was down, and that he was injured by the falling of the rock which he picked, it might be argued with much force that he contributed to the injury he suffered. But it is not reasonably to be inferred from the testimony of Koso that it was his duty to do more than to shovel waste after it came from the face of the tunnel. It is true that defendant's witness said that Koso was told to pick down loose rock and then go ahead and "muck"; but, as different conclusions could reasonably be drawn from the evidence, the ascertainment of the truth was for the jury.

[2] A physician testified that he examined Koso just before the trial and found a hernia starting on the right side, loss of half the power of his right hand, and fractures of lumbar vertebra and marks of injury to the shoulder blade. The testimony covered some injuries not included in the complaint, especially the hernia and loss of power in the hand; but no objection at all was made to the testimony of the doctor. After the physician testified, plaintiff offered in evidence the Amèrican Mortality Tables. Defendant objected, on the ground that, in the absence of proof, the tables do not apply to miners engaged in mining, as the tables are based on the law of averages, and without some explanation the mortality of men engaged in such hazardous work would not fall within the law of averages. In view of the fact that there was evidence tending to show that the injuries which plaintiff said he had received were permanent in character, we are of opinion that it was within the sound discretion of the court to permit the introduction of the mortality tables, notwithstanding the fact that the plaintiff was engaged in a hazardous calling. Wilkins v. Flint, 128 Mich. 262, 87 N. W. 195; Richmond R. R. Co. v. Garner, 91 Ga. 27, 16 S. E. 110; Tweedy v. Inland Brewing Co., 75 Wash. 25, 134 Pac. 468.

[3] The court instructed the jury that the tables were admitted in order to enable them to determine the probable duration of the plaintiff's life, and that in actions for personal injuries, if the injury is of a permanent character, in estimating damages, expectancy of life is an essential element, and that to show such expectancy standard mortality tables are admissible; that it was proper that the jury should consider the nature of the employment of the person injured, and that he was engaged in a more hazardous employment than the average men with reference to whom the tables were made up; and that, while the tables were not an absolute guide for the judgment of the jury, they might, however, be considered in connection with all the other evidence in the case. The court carefully charged that consideration of the mortality tables was only proper if the jury reached the conclusion that the injuries received by Koso were permanent, and that if they concluded that his injuries were "temporary, and not permanent," then

(273 F.)

the tables as to his expectancy of life should not be considered at all. Defendant below made no requests for more explicit instructions with respect to the mortality tables, and we find no error in the charge explaining their relation to the issues. Vicksburg R. Co. v. Putnam, 118 U. S. 545, 7 Sup. Ct. 1, 30 L. Ed. 257; L. & N. R. Co. v. Burns, 242 Fed. 411, 155 C. C. A. 187.

[4] It is said the court erred in its instruction as to what elements could be taken into consideration by the jury in considering what damages, if any, plaintiff might recover. But, no exception having been taken to the part of the charge covering that subject, defendant cannot complain that it has been prejudiced. We may say, however, that upon the question of damages the instructions show that the court told the jury explicitly that they should consider whether the injuries, if any, were permanent, to what extent, if any, plaintiff had suffered, whether he had been disabled or incapacitated to earn a living at all, the age of plaintiff, what his occupation and income were, and whether his employment would have continued.

[5] The point that the amount of the verdict was excessive was presented on motion for new trial, which was overruled by the court. This court will not disturb the ruling. Copper River & N. W. R. Co. v. Reeder, 211 Fed. 280, 127 C. C. A. 648.

[6] Error is assigned because the court overruled defendant's motion that plaintiff be required to give security for costs. The affidavit in support of the motion was made by the claim agent of the defendant, who stated that to the best of his knowledge and belief, "and so far as he has been able to ascertain, the plaintiff, Mike Koso, is not the owner of any property out of which costs could be met by execution sale." Plaintiff's counsel objected to the motion, on the ground that the application did not comply with the laws of the state of Arizona, and did not show that the plaintiff was not the owner of property out of which costs could be met by execution sale. The statute (section 643, c. 24, R. S. of Arizona) provides that:

"At any time before trial, on motion of defendant, supported by affidavit showing that the plaintiff is a nonresident of the state, or that the plaintiff is not the owner of property out of which the costs could be made by execution sale, the court shall order the plaintiff to give security for the costs; and if the plaintiff fails so to do within ten days next after the order is made, the case shall stand dismissed."

Inasmuch as the record fails to show that the defendant saved an exception to the ruling of the court, there is no question for decision. It would seem, however, that an affidavit "showing" that plaintiff is not the owner of property out of which the costs could be made ought to contain more than the mere statement that, so far as affiant is able to ascertain, plaintiff is not the owner of any property.

[7] The complaint, when filed, contained two counts, the first based upon the Employers' Liability Law of Arizona, and another founded. upon the common law. Defendant demurred to the "whole complaint," upon the ground of the improper joinder of two several causes of action, and also filed a general demurrer to the first cause of action, on the grounds that no negligence was pleaded and that the constitutional

rights of defendant were being invaded without due process of law. A few days before the trial, March 22, 1920, by order of court, plaintiff elected to proceed under the Employers' Liability Act, and dismissed the other cause of action, to which action defendant excepted. Defendant argues that the court erred in not ruling upon the demurrer to the "whole complaint." Inasmuch as the ruling upon the demurrer to the first cause covered the main points, no prejudice could have resulted. Moreover, defendant made no request of the court for a ruling before it proceeded to trial, and reserved no exception to the failure of the court to rule.

[8] It is said that action under the Employers' Liability Act (section 3162) cannot be "maintained" unless commenced within two years from the day the cause of action accrued, and that section 710 of the statutes of Arizona provides that an action for personal injuries shall be "commenced and prosecuted" within two years after the cause of action shall have accrued. As the cause of action in the present instance accrued in December, 1917, and trial was not had until March, 1920, we are asked to hold that the limitation of the statute has been rendered ineffectual.

We cannot agree with that position. Plaintiff below, having commenced his action within two years after the cause accrued, ought not to be denied a right to proceed with it merely because the court delayed ruling upon the demurrers or failed to make an order of election until more than two years passed after the accrual. After careful examination of the record, we find no prejudicial error, and must affirm the judgment. Affirmed.

F. A. MFG. CO., Inc., v. HAYDEN & CLEMONS, Inc.

(Circuit Court of Appeals, First Circuit. April 26, 1921. Rehearing Denied June 3, 1921.) No. 1499.

1. Abatement and revival 41, 48-Cause of action abates at law, but not in equity, on death or assignment of interest.

At common law and apart from statute, on the death of a sole party plaintiff or the assignment of his entire interest in the subject-matter of a suit, the cause of action abated or ceased to exist; but in equity it did not abate, if it was of a nature that survived, but was merely suspended until the representative of the deceased party or the purchaser became a party to the litigation.

2. Abatement and revival ~68-Doctrine of abatement without application to judgment or decree.

A cause of action ceases to exist on being merged in a judgment or decree, and so long as the decree remains in force the doctrine of abatement is without application.

3. Appeal and error 330 (1)—Purchaser of patent and of causes of action for infringement entitled to appeal from decree adverse to patentee.

Where, after a decree for defendant in a suit for infringement of a patent, the patentee sold the patent and assigned to the purchaser all causes of action or claims for infringement, with a right to sue in the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(273 F.)

name of the patentee, the purchaser, by its purchase, and by filing a sworn petition for an appeal and an appeal bond, and the allowance of each, became privy to the record as the real party in interest, and was entitled to appeal.

4. Appeal and error 330 (1)—Appellate court may inquire into purchaser's right to appeal, or direct inquiry by District Court.

If one claiming the right to appeal from a decree for defendant in a patent infringement suit as a purchaser of the patent and all rights of action for infringement thereof is not the real owner of the patent and of the right to appeal, or purchased such rights for an ulterior purpose, with a view to carrying on vexatious litigation, the Circuit Court of Appeals has power to inquire into such matters, or to direct an in'quiry to be made in the District Court.

5. Appeal and error may appeal.

On Petition for Rehearing.

330 (1)—One taking assignment after final decree

One taking an assignment of a cause of action after final decree may appeal in his own name, on making himself a party by appropriate application, or in the name of his ancestor without being made a party; he being bound by all that was done before the assignment.

Appeal from the District Court of the United States for the District of Massachusetts.

Suit by the Brockton Heel Company, Incorporated, against Hayden & Clemons, Incorporated. From a decree for defendant, the F. A. Manufacturing Company, Incorporated, assignee of the Brockton Heel Company, appeals. On motion to dismiss the appeal. Motion denied.

William Quinby, of Boston, Mass., for appellant.

Odin Roberts and Roberts, Roberts & Cushman, all of Boston, Mass., for appellee.

Before BINGHAM and JOHNSON, Circuit Judges, and ALDRICH, District Judge.

BINGHAM, Circuit Judge. In a suit brought by the Brockton Heel Company, Incorporated, against Hayden & Clemons, Incorporated, for infringement of letters patent No. 14,476, in the District Court for Massachusetts, a decree was entered for the defendant. After the decree was entered the F. A. Manufacturing Company, Incorporated, purchased from the Brockton Company the patent, and took assignments of it and of "all causes of action or claims for damages or profits arisen or accrued by reason of any infringement of said letters patent prior to the date of said assignments," with a right "to sue for and collect said damages and profits in the name of the Brockton Heel Company, Incorporated." Having thus obtained the right and title of the plaintiff in suit, the Manufacturing Company, within the statutory period (26 Stat. at Large, 829, § 11), presented a petition for an appeal in the District Court, in which it alleged the purchase of the patent, an assignment of all causes of action or claims for damages or profits which had accrued, a right to sue and collect the same in the name of the Brockton Heel Company, Incorporated, and prayed

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes