ployment. He may assume a risk by his own acts. He may also assume a risk which is well stated in Tuttle v. Milwaukee Railway, 122 U. S. 189, 195, 7 Sup. Ct. 1166, 30 L. Ed. 1114, in which case Judge Cooley is referred to as saying that, when an employé engages in his employment, he does so in view of all the incidental hazards of the business when reasonably conducted, and that he and his employer, when fixing the terms and agreeing upon the compensation, must have contemplated these hazards as having an immediate bearing upon their agreement; that the employé well knows that he will be exposed to an incidental risk; and that he must be supposed to have contracted that, as between himself and the master, he would run this risk.

In passing the Workmen's Compensation Act, the Rhode Island Legislature was dealing with a matter of public interest, for the protection of a great class of our citizens. Its legislation should not receive a narrow construction. The Legislature used the plain, broad language that in an action to recover damages for personal injuries sustained by accident by an employé, in the course of his employment, it shall not be a defense "that the employé assumed the risk of the injury." The Legislature had before it the well-known condition that there are the two ways which we have mentioned by which an employé may assume the risk of injury; namely, by his acts and by his agreements. Nothing is brought to our attention which tends to the conclusion that the Legislature intended to exclude one way of assuming risk, and to permit another. Nothing before us leads to the inference that the Legislature did not intend to exclude the entire matter of assumed risk, regardless of classifications as to the different ways. by which a risk may be assumed. The Legislature may well have had in mind, also, that the master's liability depends upon negligence; and that evidence of negligence is often directed to what an employé is doing under his agreement of service. And it is sometimes of little practical importance whether it be found that a certain risk is assumed, or that, under the contractual relations existing between the master and the servant, no negligence is found on the part of the master. This is illustrated in Ashton v. Boston & Maine Railroad, 222 Mass. 65, 109 N. E. 820, L. R. A. 1916B, 1281, which case is relied on by the defendant. In that case, the Massachusetts court had before it a condition in which the plaintiff's intestate was a foreman in the defendant's employ; he was skilled in electrical matters; he was under the duty of seeing whether the electric wires and appliances within the electric zone were in repair, and to maintain and keep them in repair. When injured, Ashton was in the performance of this duty. In doing it he was killed. The court found that the record did not disclose any evidence of negligence on the part of the defendant. That was the decision of the case. What the court said further, beyond deciding the case, it is not necessary for us to consider. It is clear that if dangers ordinarily incident to a business, when properly conducted, are contractually assumed or, standing alone, are not evidence upon which a finding of negligence on the part of an employer could be predicated, we are not concerned with such a case.

In the case at bar nothing happened like the facts in the Ashton Case. Rust was a lineman; he was not a hunter for electrical trouble; he was under no duty to discover whether electrical appliances and instrumentalities were out of repair, and, if so, to repair them; he did not go upon the pole to see whether the pothead needed to be repaired. or needed any further insulation; he was there to do his duty as a lineman in renewing wires on defendant's poles; and his injury was not due to a danger incident to the business in which he was engaged, when such business was reasonably conducted. There was evidence tending to show that he met his death by reason of the failure of the railroad to exercise the care of a reasonably prudent man in providing suitable electrical appliances and instrumentalities, in keeping them properly insulated, and in sufficiently warning its employé. There was evidence, also, to the contrary. All this evidence was given to the jury under proper instructions by the court below. We find no error in the action of the District Court in such submission of the case to the jury, and in refusing to direct a verdict for the defendant.

The judgment of the District Court is affirmed, with interest; the defendant in error recovers her costs in this court.

LA CROSSE PLOW CO. v. PAGENSTECHER.

(Circuit Court of Appeals, Eighth Circuit. April 11, 1918. Rehearing Denied July 8, 1918.) No. 4797.

1. APPEAL AND ERROR 866(3)-REVIEW-QUESTIONS PRESENTED.

Where the court directed a verdict for plaintiff, and defendant's motion for directed verdict was unaccompanied by any other request, and neither party requested that any fact in issue be submitted to the jury, the only question for review by the appellate court is whether, there is any evidence to support the verdict.

2. TRIAL 177-DIRECTION OF VERDICT-ARGUMENT.

Where each party moved for a directed verdict in its favor, the court had power to direct a verdict, notwithstanding the case had been partially argued to the jury.

3. APPEAL AND ERROR

883-DIRECTION OF VERDICT-PROPRIETY. Where defendant requested a directed verdict at the close of plaintiff's evidence, and again at the close of all of the evidence, it cannot be heard to say that the case ought to have gone to the jury; plaintiff's motion for directed verdict having been granted.

4. PRINCIPAL AND AGENT 89(8)-COMMISSIONS-SALES AGENT.

In an action for commissions claimed as a sales agent, evidence held to warrant a finding that the plaintiff did not agree to wait for commissions until purchase-money notes received by defendants should be paid.

Stone, Circuit Judge, dissenting.

In Error to the District Court of the United States for the District of Nebraska; Thomas C. Munger, Judge.

Action by Louis Pagenstecher against the La Crosse Plow Company, a corporation. There was a judgment for plaintiff, and defendant brings error.

Affirmed.

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

Charles H. Schweizer, of La Crosse, Wis. (M. A. Hall, of Omaha, Neb., on the brief), for plaintiff in error.

David A. Fitch, of Omaha, Neb. (Raymond T. Coffey and Gurley & Fitch, both of Omaha, Neb., on the brief), for defendant in error. Before CARLAND and STONE, Circuit Judges, and RINER, District Judge.

CARLAND, Circuit Judge. Defendant in error, plaintiff below, sued the Plow Company to recover commissions claimed to be due him under a written contract as sales agent. The commissions sued for were claimed on sales made to one Howard. They consisted of two items. The first item, of $6,621.09, was for sales for which notes were given by Howard. The second item, of $2,105, was for implements sold to Howard, but taken back by the Plow Company. The contract provided that one-half of the commission should be payable "on receipt of and acceptance of order, balance when accounts are paid or settled by note." The sales were made prior to November, 1912, under a contract dated November 9, 1910, and extended until November, 1912. That the first item and one-half of the second had been earned and were due by November, 1912, is not disputed. The whole contention at the trial was over the question as to whether the plaintiff had agreed to waive the payment of the commissions until the Plow Company had received payment from Howard, there being no evidence that such payment had been received by the Plow Company. At the close of all the evidence, counsel for both parties moved the court for a directed verdict. The court denied the motion of counsel for the Plow Company, and directed a verdict in favor of plaintiff for the sum of the first item and one-half of the second, with interest, less $876.95, the amount of a counterclaim pleaded by the Plow Company, which was undisputed. The Plow Company has removed the case here assigning the following errors: (a) The refusal to direct a verdict in its favor; (b) the granting of the motion of the plaintiff for a directed verdict; (c) the allowance by the court of interest on plaintiff's demands thereof from December 12, 1912.

[1] The motion for a directed verdict on the part of counsel for the Plow Company was unaccompanied by any other request, and neither party requested that any fact in issue be submitted to the jury. In this condition of the record the only question now open is as to whether there is any evidence to support the verdict. Beuttell v. Magone, 157 U. S. 154, 15 Sup. Ct. 566, 39 L. Ed. 654; Empire State Cattle Co. et al., v. Atchison, Topeka & S. F. Ry. Co., 147 Fed. 457, 77 C. C. A. 601; Id., 210 U. S. 1, 28 Sup. Ct. 607, 52 L. Ed. 931, 15 Ann. Cas. 70; Minahan v. Grand Trunk Western R. Co., 138 Fed. 37, 70 C. C. A. 463; Melton et al. v. Pensacola Bank & Trust Co., 190 Fed. 126, 111 C. C. A. 166; Farmers' & Merchants' Bank v. Maines, 183 Fed. 37, 105 C. C. A. 329; American National Bank v. Miller, 185 Fed. 338, 107 C. C. A. 456; United States v. Two Baskets, 205 Fed. 37, 123 C. C. A. 310; In re Iron Clad Manufacturing Co., 197 Fed. 280, 116 C. C. A. 642; Southern Pac. R. Co. v. United States, 222 Fed. 46, 137 C. C. A. 584; Breakwater Co. v. Donovan, 218 Fed. 340, 134 C. C. A. 148;

Allegheny Valley Brick Co. v. C. W. Raymond Co., 219 Fed. 477, 135 C. C. A. 189; Anderson v. Messinger, 158 Fed. 251, 85 C. C. A. 468; Western Express Co. v. United States, 141 Fed. 28, 72 C. C. A. 516.

[2, 3] The fact that the case had been partially argued to the jury when the court directed the verdict for the plaintiff does not alter the legal relations of the parties to the record. The power to direct a verdict existed at the time the direction was made. Counsel for the Plow Company, having requested the court to direct a verdict at the close of the plaintiff's evidence and again at the close of all the evidence, cannot be heard to say that the case ought to have gone to the jury. That the plaintiff was entitled under the contract to what the court gave him is undisputed, unless the evidence introduced by the Plow Company, tending to show that the plaintiff had agreed to wait for the amount due him until the Plow Company had received payment for the implements sold, was so clear and undisputed that no verdict in opposition thereto would be allowed to stand.

[4] We proceed, then, to consider whether the evidence upon the subject mentioned was undisputed. In this connection we quote the following from the brief of counsel for the Plow Company:

"The principal issue of fact relied upon by plaintiff in error, and resting in part upon oral testimony which was disputed by the defendant in error, was whether the latter had made an agreement in respect to the Howard commissions to the effect that he would wait for the payment of the same until the Howard notes were paid."

We agree with counsel for the Plow Company that there was a disputed question of fact, and a careful consideration of the evidence convinces that there was evidence to sustain the verdict. We do not think the court erred in regard to the question of interest. The debt on which the interest was allowed was the debt which both parties agreed had been earned December 12, 1912.

The judgment below is therefore affirmed.

STONE, Circuit Judge (dissenting). I am compelled to dissent from the conclusion reached by the majority of the court. To my mind the evidence is conclusive that defendant in error waived the present payment of the sums in suit.

WILLARD et al. v. UNION TOOL CO.

(Circuit Court of Appeals, Ninth Circuit. August 5, 1918. Rehearing Denied October 30, 1918.) No. 3131.

Where two bona fide applications for patents are pending at the same time, neither is prior in art to the other.

2. PATENTS 90(1)—PRIORITY BETWEEN PATENTS.

When two patents for the same invention have been issued to independent inventors, the rule is that the dates of their inventions are (1) the dates of the patents, (2) the dates of the applications, provided they sufficiently describe the invention, and (3) the dates of actual reduction to practice.

3. PATENTS 90(5)-DATE OF INVENTION-REDUCTION TO PRACTICE.

In the absence of other proof, the filing of application for a patent is taken to be a reduction to practice of the invention.

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

4. PATENTS 91(1)-PRIORITY BETWEEN PATENTS-BURDEN AND MEASURE OF PROOF.

As between rival inventors whose applications are.pending at the same time, the burden is on him whose application is second to show that ne was first to reduce the invention to practice.

5. PATENTS 91(3)—PRIORITY BETWEEN PATENTS-MEASURE OF PROOF.

In a contest between rival inventors for priority of invention, their applications being pending at the same time and both inventors having reduced their conceptions to practice, the one whose application is second, in sustaining the burden of proving that he was the first to reduce the invention to practice, is required to establish his priority only by fair preponderance of evidence and not by proof conclusive in character or beyond a reasonable doubt.

The mere fact that human agency intervenes in an operation does not render a combination unpatentable, nor is it necessary that the action of the elements be simultaneous, nor that one of the elements shall so enter into the combination as to change the action of the others; but it is sufficient if there be some joint operation of the elements producing a reIsult due to their co-operative action.

7. PATENTS ~26(2)—“COMBINATION"-NEW RESULT.

To constitute a patentable "combination," the result itself need not be new, but it is sufficient if an old result be produced in a more facile, economical, or efficient way.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Combination.]

8. PATENTS 328-VALIDITY AND INFRINGEMENT-WELL-BORING APPARATUS. The Willard and Wilcox patent, No. 1,064,270, for a well-boring apparatus, claims 6, 7, 8, and 9, held not anticipated, valid, and infringed. Claims 1, 2, 3, 4, and 5 for combinations held invalid as not for true combinations in a unitary structure.

9. PATENTS25-AGGREGATION-DETACHED PARTS.

A well-boring apparatus patent, for combination of a drive bushing device for rotating the string, with "slips" for holding the string in position while removing or restoring it, the slips being removable by hand when not in use, held a mere aggregation, and not a combination, since the manual use of a tool or an unattached movable device cannot be made an element of a combination claim.

Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Edward E. Cushman, Judge.

Suit in equity by Arthur G. Willard and William W. Wilson against the Union Tool Company. Decree for defendant, and complainants appeal. Reversed in part and affirmed in part.

Raymond Ives Blakeslee, of Los Angeles, Cal., for appellants.
Frederick S. Lyon, of Los Angeles, Cal., for appellee.
Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT, Circuit Judge. The appeal in this case involves the decrees of the court below in two suits for infringements of patents, namely, Willard and Wilson against the Union Tool Company, and the same plaintiffs against the Oil Well Supply Company and R. H. Herron. Both suits are upon patent No. 1,064,270 issued to Willard and Wilcox on June 10, 1913, on an application filed March 11, 1912. Submitted with these cases in the court below was the case . of Griffin et al. v. Wilson et al., upon patent No. 1,067,330, issued

253 F.-4