Vol. IV.] SMITH V. GOODYEAR DENTAL VULCANITE CO. ess. [No. 2. But the experiments resulted in nothing practical. Hawes cast sets of teeth for the lower jaw only, the weight of the metal making the plate unfit for the upper. In consequence of the shrinkage of the metal in cooling, a tight joint could not be obtained between the teeth and the base. The sets were, therefore, liable to become offensive in consequence of deposits of food and the secretions of the mouth in the crevices. The shrinkage also prevented a close fitting of the plate to the roof of the mouth, and the tin base was affected by the chemical action of the secretions. In consequence of these and other objections the manufacture was soon abandoned, and it may properly be considered an abandoned experiment. It not only was not the same manufacture as that of Cummings, but it was not suggestive of it; and Dr. Hawes, who cast the tin plates, testifies that the use of vulcanite for dental purposes is the greatest improvement in his profession that he knew of in twenty-five years. He adds "that vulcanite may be used by dentists in many ways which could not be accomplished by tin or platinum." In his opinion, therefore, the cast tin base was not substantially the same thing as the Cummings manufacture. So, also, Dr. Royce, who cast plates of tin for artificial teeth in a manner very similar to that of Dr. Hawes, testifies that the solid tin base was found practically unfit for the purpose, except in rare instances. He made but a few sets, none after 1850, and adopted the vulcanite, agreeing to pay for a license to use it in manufacturing dental plates. We need go no farther into a consideration of the various devices and publications offered to show that the manufacture patented was known before Cummings invented it. Suffice it to say, that none of them, in our opinion, suggest or exhibit in substance such a manufacture. The defence of want of novelty is, therefore, not sustained. But It is further insisted by the defendant that the reissued patent on which this suit is founded is not a patent for the same invention which was described in the specification of the original patent, and, therefore, that the reissue is unauthorized and void. To sustain this position the defendant must overcome the presumption against him arising from the decision of the commissioner of patents in granting the issue, and this he can do only by showing from a comparison of the original specification with that of the reissue that the former does not substantially describe what is described and claimed in the latter. This must plainly appear before we can be justified in pronouncing the reissued patent void. this, in our judgment, does not appear. The first specification describes a set of artificial teeth having a hard-rubber plate made by a process substantially the same as that indicated in the later patent. The description of the process is not quite so minute, but it is sufficiently full to be understood and to enable an operator to make the manufacture. Certainly it is not another process, and as its result is the same, it is impossible to hold that the reissued patent is for a different invention from the one protected by the original patent. It is true the specification of the reissue describes also another process not described in the specification of the first, namely, a mode of making the molds, but that is not claimed as a part of the invention. The remaining defences to the bill rest mainly on the assumption that the new petition presented to the patent office in 1864 cannot be regarded Vol. IV.] SMITH V. GOODYEAR DENTAL VULCANITE Co. [No. 2. as a continuation of the application made for a patent on the 12th of April, 1855. But this cannot be conceded. The history of the application, as we have given it, forbids such an assumption. No act of Cummings amounted to a withdrawal of his first petition or to an acquiescence in its rejection. It is true, he filed a second petition in 1864, but he accompanied it with substantially the specification that remained in the office, and with the same drawings. It was a mode of procuring another consideration of his rejected claim, and the commissioner regarded it as such. The Act of March 2, 1861, gave him authority thus to regard it. He replied to the application, that his claim was embraced in an application filed by him in 1855, and rejected for want of novelty, admitted that it had been improperly rejected, and suggested an amendment to make it correspond with his former amended claim. It is impossible, in view of these facts, to regard the effort to obtain a new patent in 1864 as a new and independent application, disconnected from the application made in 1855. It was but one stage in a continuous effort. In Godfrey v. Eames, 1 Wall. 317, the first application was actually withdrawn and a new petition was presented at the time of the withdrawal, with a different description of the invention; but as the thing patented under the second might have been engrafted as an amendment of the first, it was ruled that all the proceedings constituted one application. This court said: "If a party choose to withdraw his application for a patent, and pay the forfeit, intending at the time of such withdrawal to file a new petition, and he accordingly does so, the two petitions are to be considered parts of the same transaction, and both as constituting one continuous application." We are not aware that filing a second petition for a patent, after the first has been rejected, has ever been regarded as severing the second application from the first, and depriving the applicant of any advantage he would have enjoyed had the patent been granted without a renewal of the application. The contrary was decided by the circuit court for the Southern District of Ohio, in Bell v. Daniels, 1 Fisher, 372, and in Blandy v. Griffith et al. 3 Fisher, 609. And these decisions are founded in justice and sound reason. If then, as we think it must be held, the proceeding to obtain the patent was a continuous one from 1855 until it was granted; if the application of 1855 is not severable from the proceedings of 1864, there is no foundation whatever for the allegation that the invention was abandoned to the public, and that it was in public use or on sale for more than two years before the inventor's application. The first use of it proved, by any other than Dr. Cummings, was in 1859, and there is no evidence. that this was with his consent. And the truth respecting his health and pecuniary condition, together with his constant efforts to obtain the necessary means to prosecute his right, rebuts all presumption that he ever abandoned, actually or constructively, either his invention or his application for a patent. That he never intended an abandonment of his invention is perfectly clear, and it was not his fault that granting the patent was so long delayed. The conclusion of the whole matter is, that the patent is a valid one, and, therefore, that the decree of the circuit court should be affirmed. The decree of the circuit court is affirmed. PITTSBURG, FT. WAYNE, AND CHICAGO R. W. Co. v. HAZEN. Vol. IV.] [No. 2. Mr. Justice BRADLEY dissenting. I dissent from the judgment of the court in this case, on the ground that the patentee having duly made his application for a patent in 1855, and the same having been three times rejected, must be considered as having abandoned the same, inasmuch as no further effort was made to obtain a patent until eight years afterwards, without any pretence that the patentee was engaged in perfecting his invention, and in the mean time the invention which he claims as his had come into general public use. The application for a patent made in 1864 was a new and independent application, and should be treated as such. As the public had enjoyed the use of the invention for more than two years prior to this application, the patent should be declared invalid. Great injustice will, in my judgment, be done to the public to allow a patent obtained under such circumstances to stand. The public had a right to suppose that no further application would be made. The levy of a tribute now on all the dentists of the country who have brought the plate into public notice and use seems to me a species of injustice. The delay of the patentee, in fact, is made to operate to his benefit instead of his prejudice; his patent being made to run eight years longer than it would have done had it been granted when first applied for. So that the public is still further injured by sustaining the patent as finally granted. It is too common a case that associated companies, in order to maintain some valuable monopoly, look about to see what abandoned invention or rejected application, or ineffective patent can be picked up, revamped, and carried through the patent office; and by the aid of ingenious experts and skilful counsel succeed in getting the desired protection. I think that the courts ought to be strict in maintaining the rights of the public in such cases. And the present case seems to me to be one in which we ought to hold the patent invalid as against those rights. Mr. Justice MILLER and Mr. Justice FIELD concur in this opinion. SUPREME COURT OF ILLINOIS. [SEPTEMBER, 1876.] COMMON CARRIER. DELAY IN TRANSPORTATION CAUSED BY VIOLENCE OF STRIKERS.' 66 PITTSBURG, FT. WAYNE, AND CHICAGO R. W. CO. v. HAZEN. A common carrier is liable for loss or injury caused by delay resulting from the refusal of its employees to do duty; but is not liable for loss or injury caused by delay resulting from the lawless violence of former employees "on a strike." THE appellee, Hazen, recovered a judgment against appellant in the superior court of Cook County. Upon appeal to this court the said judgment was affirmed (the opinion of the court was read by Craig, J., and Vol. IV.] PITTSBURG, FT. WAYNE, AND CHICAGO R. W. Co. v. HAZEN. [No. 2. will be found below), whereupon the appellant petitioned for a rehearing, which was granted, and the former opinion reversed and judgment entered for appellant. The following is the opinion announced upon the first hearing in this court: CRAIG, J. This was an action brought by Chester Hazen, in the superior court of Cook County, against appellants, as common carriers, to recover damages for a failure to safely and within a reasonable time carry from Chicago to New York a certain quantity of cheese and butter. A trial was had before a jury, which resulted in a verdict for the plaintiff for $1,100.55. The court overruled a motion for a new trial, and rendered judgment upon the verdict. It appears from the evidence preserved in the record that on the 10th of December, 1870, appellee shipped from Chicago to New York, on appellants' freight line, thirty-five thousand pounds of cheese, and a quantity of butter, under an agreement made at Chicago with one Nottingham, who was agent of appellants. The cheese did not arrive in New York until the 28th day of December, which made seventeen days the goods were upon the road. The ordinary or usual time required to carry goods from Chicago to New York was nine or ten days. When the cheese arrived in New York, it was badly frozen. From the 10th to the 23d of December, the weather was fine, and no frost to damage or freeze the cheese. The evidence shows the damage to the cheese was $1,100.55. It also appears, from the evidence, that the goods were detained at Leavitsburg, Ohio, from the 15th to the 22d of December. Upon the trial of the cause, the appellants offered evidence tending to show that the delay of the goods at Leavitsburg, and the consequent failure to ship and deliver to New York, within a reasonable time, occurred on account of a brakesman's strike for higher wages, on two divisions of the freight line, which began on the 11th of December, and continued about one week; that the strike was not caused through the fault of the railroad company, and reasonable efforts were made to induce the men to return to their work, or employ others to take their places. This evidence the court excluded from the jury, and in this it is insisted the court erred. The law is well settled that a common carrier is required, in the transportation of goods, to ship and deliver to the consignee within a reasonable time, and a failure to discharge this duty renders the carrier liable for all proximate damages that result from a failure to discharge this obligation. I. C. R. R. Co. v. McClellan, 54 Ill. 58. The employees of a railroad company, in charge of trains for carrying of passengers and transportation of freight, are held out to the public by the company as being competent to discharge the duties in which they are severally engaged. So far as the public is concerned, the company guarantees the fidelity and good conduct of their employees in matters within the scope of their employment. It is also a rule, well settled, that the company is liable for the frauds and negligence of its agents and employees in the course of their employment. Galena & Chicago Union R. Ř. v. Roe, 18 Ill. 488; Story on Agency, sec. 452. Vol. IV.] PITTSBURG, FT. WAYNE, AND CHICAGO R. W. Co. v. HAZEN. [No. 2. Then upon what principle the company can shield itself from liability to the public, because its own agent or employees have failed to discharge a duty that he or they may owe to the company, we are at a loss to perceive. Many of the accidents which occur upon a passenger train, to the life or limb of a passenger, for which the company are required to respond in damages, are to be traced directly to the failure of an employee to discharge a duty resting upon him; and yet the doctrine contended for by appellant, when carried to its legitimate extent, would relieve the company of responsibility in any case where the accident was occasioned by the fault of an employee to discharge a duty to the company. Nor can it make any difference whether the strike was occasioned through the fault of the company or the brakesmen. That was a matter entirely between the company and its employees, with which appellee was in no manner concerned, and on account of which he should not be required to suffer loss upon his goods, intrusted to the company for transportation. The case of Blackstock v. The New York & Erie R. R. Co. 20 N. Y. 48, is in point on the question involved. In that case, potatoes were shipped from Steuben County to New York, and the usual time for transportation was five days. The potatoes were on the road seventeen days, and when delivered, it appeared they had been damaged by the delay on the road. The delay was occasioned by a strike of engineers on the company's road, which was caused by the adoption of a certain rule by the company, which the court found to be a reasonable one. The court said: "The position that the defendants are not responsible, because the misconduct of their servants was wilful, and not negligent, cannot be sustained. The action is not brought on account of any injury done to the property by the engineers, but for an alleged non-performance of a duty which the defendants owed to the owner of the property. If the inability to perform was occasioned by the default of persons for whose conduct they are responsible, they must answer for the consequences, without regard to the motives of those persons. . . . It does not appear that any blame can attach to any of the superior officers of the company. Still the property intrusted to the defendants to carry has been lost from a failure on their part to perform the duty with which they were charged, and the only answer which they are able to make to the demand for compensation is, that the failure was caused by the misconduct of their servants. This, we have seen, cannot avail them as a defence." See, also, Michaels v. New York Cent. R. R. Co. 30 N. Y.; Reed v. Spaulding, 30 N. Y. 630. We are satisfied, both upon principle and from the authorities, that the court did proper in rejecting the evidence offered. Whether the delay in the transportation of appellee's goods, which occasioned the damage, resulted from the railroad company or from the refusal of its employees to discharge their duty, in either event the company must be held liable for the damage to the goods. It is, however, insisted that the court excluded evidence which tended to prove the delay was caused by the assaults which the brakesmen made. upon the company's trains after they were discharged, and not in the employ of the company, aided and assisted by others who had previously been discharged from the service of the company. The question seems |