*637

their trunks? A. I couldn't say about that. Don't know anything about that. Checked the baggage." On redirect examination he testified: "Q. As a fact, from your knowledge of trunks, could you tell from looking at that trunk that it contained jewelry? A. I could not."

The circuit court said, in its opinion, that the nature and contents of the trunk were not expressly disclosed to the agent at Springfield; that he made no inquiries on that subject; that the trunk was 3 by 22 feet, ironbound, weighed 250 pounds, and was known in the trade and to baggage men as a "jeweler's" or "commercial traveler's" trunk; that the evidence showed that the interveners and other merchants of the same class, then and prior thereto, sold their goods, in the main, directly from trunks transported from place to place over railroads, and that this road had previously and frequently checked and carried such trunks for the interveners and others as personal baggage. The opinion then said: "If the station agent did not know that the trunk contained jewelry, he had reason to believe it did. He received it knowing that Perry was not entitled to have it carried as personal baggage. The agent did not believe the trunk contained wearing apparel only. It is plain from the evidence that he recognized it as a jeweler's trunk, and that he understood it contained a stock of jewelry. He was not, therefore, deceived, and the receivers were not defrauded. HavIng checked the trunk by their agent as personal baggage, knowing or having reason to believe that it contained jewelry, the receivers became bound to safely transport it to its destination, which they did not do; and they are liable for the damages that resulted from a breach of the contract. They sustained to the trunk and its contents the relation of a carrier, and they are liable for the property destroyed by their negligence, just as if the trunk had contained nothing but wearing apparel, or as if they had undertaken to carry it as freight."

say anything in regard thereto, but simply presented the trunk, as had been customary with him and other salesmen, to be received and checked as ordinary baggage, as it had been customary for agents to do on this and other roads; and the court said, in its opinion, that the nature and contents of the trunk were not expressly disclosed to the agent, and that he made no inquiries on that subject. It is clear, therefore, that the liability of the receivers cannot be founded on the proposition that the agent had actual knowledge of what the trunk contained.

It is further contended that the circuit court erred in holding that the agent ought to have known what was in the trunk by its external appearance. The circuit court says, in its opinion, that it is plain from the evidence that the agent recognized the trunk as a jeweler's trunk, and understood that it contained a stock of jewelry; and that, their agent having checked the trunk as personal baggage, knowing or having reason to believe that it contained jewelry, the receivers became bound to transport it safely to its destination.

Is there any evidence in the case from which it can fairly be said that the agent had reason to believe that the trunk contained jewelry? It is clear that Perry, in purchasing a ticket for a passenger train, and then tendering his trunk to the agent to be checked, tendered it as containing his personal baggage. The agent was not informed to the contrary by Mr. Perry or by any other person. As the agent did not know what the contents were, the allegation that he recognized the trunk as a jeweler's trunk, and understood that it contained a stock of jewelry, necessarily implies that such recognition and understanding must have arisen from the outward appearance of the trunk. The testimony on that subject is as follows: Arthur J. Perry testified: "Question. What kind of a trunk was that? Answer. It was a heavy iron trunk,-ironbound, "dark trunk, small size. Q. Had it any particular designation that you know of? A. It is a trunk that we used in our business, is about all; very small and heavy. Q. The kind of a trunk

edge of what the trunk contained, and that he knew, or had reason to believe, that it contained a stock of jewelry.

There is no evidence showing, or tending to show, that the baggage agent had any actual knowledge of the contents of the trunk. Arthur J. Perry did not suggest that he either told the agent what the trunk contained or opened it in the agent's presence. He testified to no fact from which the inference could be drawn that the agent had actual knowledge that the trunk contained a stock of jewelry. Patterson, the agent, testified expressly that at the time he checked the trunk he did not know what it contained. The master states in his report that Perry did not disclose the character of the contents of the trunk, or

monly used and known as a 'Jeweler's trunk.'" He also said on cross-examination: "Q. You say that was a small trunk? A. Yes, sir. Q. What was its color? A. A dark trunk,-a black or gray. Q. Was it a small trunk or an ordinary sized trunk? A. It was a small trunk for the weight of it, and what sample men would call a small trunk." That is all the testimony that was given as to the size, shape, or appearance of the trunk.

Kearney, a witness for the interveners, testified as follows as to the kind of trunk generally carried by traveling men in the jewelry trade: "Question. Are you familiar with the custom or usage throughout the United States of selling goods at wholesale? Answer. Yes, sir. Q. By traveling

*640

men? A. Yes, sir. Q. State what that usage has been for that time? A. The usual custom is to carry the stock of goods of various values, according to the class of the house, and sell from that stock to the customers. It is the universal custom. Q. What proportion of the dealing in jewelry is done in that manner? A. I think nine tenths in the jobbing trade. Q. And how is this jewelry carried from place to place? A. Carried as baggage,-trunks checked as baggage; carried in compartments made in the trunk for that particular purpose. Q. What kind of trunks are they carried in? A. What is known as the 'Crouch' and 'Fitzgerald' trunks,-wooden trunks. I think they are made for that express purpose,almost universally made and used for that purpose. Q. Iron bound? A. Iron strapped, not bound. Properly, iron corners and strips; covered by three or four strips in various ways."

Patterson, the baggage agent at Springfield, testified that he checked a piece of baggage on the day in question from Springfield to Petersburg, and he said on crossexamination that he had no particular recollection about the trunk of Perry, and that he did not recollect Perry.

The evidence, therefore, is that the trunk which Perry delivered to be checked as his personal baggage was a wooden trunk, of dark color, iron bound, heavy for its size, and in size what a sample man would call small; and the question arises on these facts whether the agent was bound to know, or to be presumed to know, that such a trunk contained a stock of jewelry. If he was, it must be presumed, contrary to the positive evidence, that he could tell what was in the trunk by looking at it or handling it, and this notwithstanding the agent testified as follows on cross-examination: "Question. Don't you know, from your experience of 11 years, if a trunk containing jewelry came into your possession, and you handled it, you would be able to tell what was in it? Answer. No, sir; and nobody else."

The hypothetical trunk put to Patterson on cross-examination was described as a trunk with heavy iron corners and iron clasps, iron along the corners, and iron bandages all around it, and two or three strong locks in front. That hypothetical trunk does not appear to be such a trunk as Perry delivered to the agent.

personal baggage. The presentation of the trunk, under the circumstances, amounted to a representation that its contents were personal baggage. The fact that Perry and other persons, on other occasions, had obtained, on passenger tickets, checks from other railroad companies for trunks containing merchandise by representing them as containing personal baggage, furnishes no good reason for permitting a recovery in the present case. There is no evidence to show that on the occasions when Perry and other travelers received checks on passenger tickets for trunks containing jewelry the carrier knew what were the contents of the trunks. The testimony is that John H. Perry did not know of a railroad company which would receive and check a trunk as a passenger's baggage which was filled with, valuable jewelry.

*In the present case the trunk was offered as containing the personal baggage of a passenger. The passenger did not inform the baggage agent as to the actual contents of the trunk. The agent did not know what the trunk contained. There is no evidence that any agent of the receivers had thereto. fore received and checked a trunk as the personal baggage of a passenger, knowing that it contained a stock of jewelry; and it does not appear that any railroad company would issue a check to a passenger for a trunk, if previously informed that the trunk contained a valuable stock of jewelry.

The 25 cents extra paid by Mr. Perry on account of the weight of the trunk was paid merely for the overweight, and not at all in respect of the contents of the trunk. It was paid for so much overweight of personal baggage.

It has long been the law that the principle which governs the compensation of carriers is that they are to be paid in proportion to the risk they assume. So long ago as the case of Gibbon v. Paynton, 4 Burrows, 2298, in 1769, it was held, in the king's bench, Lord Mansfield delivering the opinion, that a bailee was only obliged to keep goods with as much diligence and caution as he would keep his own, but that a carrier, in respect of the premium he was to receive, ran the risk of them, and must make good the loss, though it happen without any fault in him, the reward making him answerable for their safe delivery; that his warranty and insurance was in respect of the reward he was to receive; and that the reward ought to be proportionable to the risk. In that case the sum of £100 was hidden in some hay, in an old nail bag, and sent by a coach, and lost. The carrier had not been apprised that there was money in the bag. The same principle was applied in Batson v. Donovan, 4 Barn. & Ald. 21, in 1820, where it was held that a carrier was not liable for bank notes contained in a parcel, when he had not been informed of the contents of the parcel

This principle is commented on in Story on Bailments, (9th Ed. § 565,) where it is said: "It is the duty of every person sending goods by a carrier to make use of no fraud or artifice to deceive him, whereby his risk is increased, or his care and diligence may be lessened; and if there is any such fraud or unfair concealment it will exempt the carrier from responsibility under the contract, or, more properly speaking, it will make the contract a nullity."

There is a uniform series of cases on this principle in the supreme judicial court of Massachusetts. In Jordan v. Railroad Co., 5 Cush. 69, it was laid down that a common carrier of passengers was not responsible for money included in the baggage of a passenger, beyond the amount which a prudent person would deem proper and necessary for traveling expenses and personal use, or intended for other persons, unless the loss was occasioned by the gross negligence of the carrier or his servants.

In Collins v. Railroad, 10 Cush. 506, it was held that the term "baggage," for which passenger carriers were responsible, did not include articles of merchandise not intended for personal use; and that a carrier was not liable for the loss of merchandise sent by a passenger train by a person who expected to go himself in the same train, but did not, the goods having been lost without any gross negligence in the carrier, or any conversion by him.

In Stimson v. Railroad Co., 98 Mass. 83, it was held that a railroad company was not liable to either owner or agent, on its ordinary contract of transportation of a passenger, for losing a valise delivered into its charge as his personal luggage, but which contained only samples of merchandise, and, with its contents, was owned by a trader whose traveling agent the passenger was, to sell such goods by sample, nor in tort for the loss, without proof of gross negligence.

In Alling v. Railroad Co., 126 Mass. 121, the above cases in 5 Cush., 10 Cush., and 98 Mass. were cited and applied, and it was held that if a passenger delivered to a railroad company a trunk containing samples of merchandise belonging to a third person, whose agent he was, to be transported to a place for which the agent had a ticket, the only contract entered into was for the transportation of the personal baggage of the agent, and the company was not liable in contract to the owner of the trunk for its loss, nor in tort, except for* gross negligence; and that evidence that a large part of the company's business consisted in transporting passengers known as "commercial travelers," with trunks like the one lost, containing merchandise; that such trunks were known as "sample trunks," and were of special construction; and that such travelers purchased tickets for the ordinary passenger

trains, and received checks for their trunks, and were transported for the price of the tickets,-was immaterial.

In Blumantle v. Railroad, 127 Mass. 322, it was held that evidence that a passenger delivered to the baggage master of a railroad corporation a package of merchandise, and received a check for it on showing his passenger ticket, that the baggage master knew it was merchandise, and that other passengers had similar packages, would not warrant a jury in finding that the corporation agreed to transport the merchandise, or became liable for it as a common carrier, in the absence of evidence of an agreement that the merchandise should be carried as freight, or that the baggage master had authority to receive freight to be carried on a passenger train, or to bind the corporation to carry merchandise as personal baggage. In the opinion of the court, delivered by Chief Justice Gray, the earlier Massachusetts cases, and other cases, English and American, were cited, and it was said: "In the case at bar the plaintiff offered and delivered the bundles as his personal baggage, and requested that they might be checked as such; and the baggage master gave him checks for them accordingly, as he was bound to do for personal baggage of passengers by St. 1874, c. 372, § 136. There was no evidence that either the plaintiff or the baggage master agreed or in tended that they should be carried as freight or that the baggage master had any authority to receive freight on a passenger train, or to bind the corporation to carry merchandise as personal baggage. The case cannot be distinguished in principle from the previous decisions of this court, already cited. Evidence tending to show that the baggage master knew or supposed the bundles to contain merchandise, or that other passengers had similar bundles, would not warrant the jury in finding that the defendant agreed to transport the "plaintiff's merchandise, or become liable therefor as a common carrier."

In Hawkins v. Hoffman, 6 Hill, 586, it was held that the usual contract of a carrier of passengers included an undertaking to receive and transport their baggage, though nothing was said about it; that, if it was lost, even without the fault of the carrier, he was responsible; but that the term "baggage" in such case did not embrace samples of merchandise carried by the passengers in a trunk, with a view of enabling him to make bargains for the sale of goods.

In Railway Co. v. Keys, 9 H. L. Cas. 556, a railway passenger, with knowledge that the company, although allowing each passenger to carry free of charge a certain amount of luggage, required all merchandise to be paid for, took with him, as if it was personal luggage, a case of merchandise, and did not pay for it as such; and it was held that no contract whatever touching the same arose between him and the company, and that there

fore, on the merchandise being lost, he was not entitled to recover the value of it from the company.

In Cahill v. Railway Co., 10 C. B. (N. S.) 154, in the court of common pleas, where a railway company was accustomed to allow each passenger to take with him his ordinary luggage, not exceeding a given weight, without any charge for the carriage of it, a passenger took with him as luggage a box containing only merchandise, but not exreeding in weight the limit prescribed for personal luggage. He gave no information to the company's servants as to the contents of the box, nor did they inquire, although he word "glass" was written on the box in large letters. In an action to recover against the company for the loss of the box it was held that, inasmuch as it contained only merchandise, and not personal luggage, there was no contract on the part of the company to carry it, and the company was not liaole for the loss. That decision was affirmed in the exchequer chamber. 13 C. B. (N. S.) 818.

In Railroad Co. v. Carrow, 73 Ill. 348, a passenger on a railroad had brought to the Jepot a trunk which *contained costly jewelry, gave no notice of its contents, and had it checked as ordinary baggage, and there was nothing about the trunk indicating its contents. It was consumed by fire while being carried, the company not being guilty of gross negligence, and it was held that the company was not liable for the contents of the trunk. It was further held that a carrier of passengers is not bound to inquire as to the contents of a trunk delivered to the carrier as ordinary baggage, such as is usually carried by travelers, even if the same is of considerable weight, but may rely upon the representation, arising by implication, that the trunk contains nothing more than baggage; that it is the duty of a passenger having valuable merchandise in his trunk or valise, and desiring its transportation, to disclose to the carrier the nature and value of the contents; that if the carrier then chooses to treat it as baggage, without extra compensation, the liability of the carrier will attach, but not otherwise; and that where a person, under the pretense of having baggage transported, places in the hands of the agents of the railroad company merchandise, jewelry, and other valuables, without notifying them of the character and value of the same, he practices a fraud upon the company which will prevent his recovery in case of a loss, except it occurs through gross negligence.

In Haines v. Railway Co., 29 Minn. 160, 12 N. W. Rep. 447, it was held that a carrier of passengers for hire was bound only to carry their "personal baggage;" that, if a passenger delivered to the carrier as baggage a trunk or valise containing merchandise, not his personal baggage, of which fact the carrier

had no notice, the carrier, in the absence of gross negligence, would not be liable for its oss; and that the carrier was not bound to inquire, in such a case, as to the nature of the property, but had a right to assume that it consisted only of the personal baggage of the passenger.

In Pfister v. Railroad Co., 70 Cal. 169, 11 Pac. Rep. 686, it was held that a railroad ticket entitling the purchaser to transportation in the first-class passenger coaches of the seller between the points indicated thereon gave the purchaser the right to have his luggage, not exceeding the quantity specified *in the ticket, transported at the same time free of charge, but that it did not give him the right to transport, either in his own charge or that of the railroad company, any merchandise or property not included in the term "luggage."

In the present case there is no allegation in the intervening petition of any gross negligence in the receivers, nor does the evidence make out any.

Various cases are cited on the part of the interveners; but either we do not concur in the views expressed in them, or they are distinguishable from the present case. Thus, in Kuter v. Railroad Co., 1 Biss. 35, it was said by Judge Drummond, in a charge to a jury, that, if the railroad company knew that immigrants, like the plaintiff, were in the habit of putting valuable articles and money among their household goods, and from such knowledge might have inferred that the box of the plaintiff might contain money, then it became the duty of the company to make inquiry in order to relieve itself from liability. But we do not think that view is sound.

In Minter v. Railroad Co., 41 Mo. 503, the merchandise in question was fully exposed, and it was known to the railroad company's agent what it was.

In Railroad v. Swift, 12 Wall. 262, it was held by this court that where a railroad company received for transportation, in cars which accompanied its passenger trains, property of a passenger, other than his baggage, in relation to which no fraud or concealment was attempted or practiced upon its employes, it must be considered to have assumed, with reference to that property, the liability of a common carrier of merchandis But that is not the present case.

So, also, the case of Stoneman v. Railwa Co., 52 N. Y. 429, was one where a carrier of passengers, in addition to passage money, demanded and received from a passenger compensation as freight for the transportation of packages containing merchandise and baggage; and it was held, in the absence of evidence of fraud or concealment on the part of the passenger as to the contents of the packages, that such carrier, in case of loss, was liable for the merchandise as well as the baggage. The same principle was ap

plied in Sloman v. Railway Co., 67 N. Y. 208.

In Millard v. Railroad Co., 86 N. Y. 441, the same principle was applied in a case where the railroad company's agent was advised by a person who had purchased a passenger ticket, of the fact that a trunk contained merchandise, and the agent demanded and received extra compensation for its transportation.

The same rule was applied in Railroad Co. v. Capps, 2 Civil Cas. Ct. App. § 34. In Jacobs v. Tutt, 33 Fed. Rep. 412, the suit was against the same receivers as in the present case, to recover the value of a trunk and contents, which were stolen, and the trunk was the trunk of a jewelry salesman, containing his stock in trade. The agent who took it knew that fact, and the plaintiff had made no effort at concealment; and it was held that the receivers were liable as for the loss of ordinary baggage on the railroad.

We have examined the other cases cited on behalf of the interveners, namely, Butler v. Railroad Co., 3 E. D. Smith, 571; Hellman v. Holladay, 1 Woolw. 365; Railroad Co. v. Fraloff, 100 U. S. 24; and Talcott v. Railroad Co., (Sup.) 21 N. Y. Supp. 318; and do not think they have any application to the present case.

The case of Switzerland Marine Ins. Co. v. Louisville, C. & L. Ry. Co., 13 Int. Rev. Rec. 342, is a charge to a jury that the item "baggage" does not include articles of merchandise for sale or for use as samples, and not designed for the use of the passenger, and that, if the passenger has such articles checked and received by the carrier as baggage, the carrier will not be liable for them if lost or injured, unless it was informed or was presumed to have known that the articles were merchandise, or unless it was the established custom or usage of the defendant to receive and transfer them as baggage, or unless they were lost by the gross negligence of the defendant. After a verdict and judgment for the plaintiff the case was brought to this court by a writ of error, and affirmed here by a divided court. 131 U. S. 440, 9 Sup. Ct. Rep. 800.

*The decree of the circuit court must be reversed, and the case be remanded to it, with a direction to dismiss the petition of the interveners.

(148 U. S. 556)

KREMENTZ v. S. COTTLE CO.
(April 10, 1893.)
No. 161.

PATENTS FOR INVENTIONS-ANTICIPATION-COLLAR

BUTTONS.

1. Letters patent No. 298,303, granted May 6, 1884, to George Krementz, for a new and improved collar button, having a hollow head and stem, and formed out of a single continuous plate of sheet metal, are not anticipated by patent No. 171,882, granted January 4, 1876, to Stokes, for a stud fastening with a solid flat

head, intended to resist a great strain, nor by patent No. 177,353, granted May 9, 1876, to Keats, for a button intended to be fastened to eyelet holes, not made of a continuous piece of metal, but having seams in the post, a base plate composed of two separate parts, and a head open on the under side.

2. Upon the question whether the Krementz device involved invention, it was shown that it combined strength with lightness and economy of material; that its advantages were at once recognized by the trade, so that large quantities were sold; and that the person charged with infringement of the patent, who was skilled in the art, had only patented buttons composed of two parts soldered together. Held, that the device was patentable, and not merely the result of the application of the ordinary skill of the calling to the Stokes and Keats devices. 39 Fed. Rep. 323, reversed.

Appeal from the circuit court of the United States for the southern district of New York.

Suit by George Krementz against the S. Cottle Company for infringement of complainant's patent. The bill was dismissed for want of novelty in the patent, (39 Fed. Rep. 323,) and complainant appeals. Decree reversed.

C. E. Mitchell and Louis C. Raegener, for appellant. Edwin H. Brown, for appellee.

Mr. Justice SHIRAS delivered the opinion of the court.

This is an appeal from a decree of the circuit court of the United States for the southern district of New York, dismissing a bill filed to restrain the infringement of letters patent of the United States, No. 298,303, granted May 6, 1884, to George Krementz, of Newark, N. J., for a new and improved collar button.

Complainant's evidence, tending to show that the collar button made by the defendants was within the claim of the patent in suit, and constituted an infringement, was not contradicted or disputed, but it was held by the court below that the patent was invalid for want of novelty. 39 Fed. Rep. 323.

In his specification the patentee states that his invention consists in a collar button having a hollow head and stem, the said button being formed and shaped out of a single continuous plate of sheet metal. The method or process of making the button is thus described:

"By means of suitable dies a metal plate is pressed into the shape shown in Fig. 2, that is, the plate is provided with a hollow stem, B, the sides of which are pressed together at about the middle, in some suitable manner, to form a head, C, at the end of the stem, as in Fig. 3. Then the head is pressed towards the base plate or back, D, whereby the head will be upset, and will have the shape shown in Figs. 4 and 5. By this operation the head is hardened. The base plate or back, D, is then rounded out and finished, and its edge turned over, as shown in Fig. 5."

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