ALSCHULER, Circuit Judge. The appeal is from a decree in favor of appellee in an action for infringement of claims 1, 3, and 5 of appellant's United States patent No. 982,217, January 17, 1911, for a "flexible car wheel." The claims are:

"1. In a flexible car wheel, the combination, of a central hub portion, and an outer rim portion, arranged with an annular recess or opening between said hub portion and said rim portion, flexible material, arranged in said annular recess, non-sound conducting material, arranged upon the sides of the flexible car wheel, substantially as and for the purposes specified."

"3. In a flexible car wheel, the combination, of a hub section, and a rim section, flexible material, interposed between said sections, a side or flange extension of the rim section, arranged for operative contact with the hub section, for limiting the movement of the rim section, with the hub section, substantially as and for the purposes specified."

"5. In a flexible car wheel, the combination, of a hub section, and a rim section, flexible material interposed between said sections, a follower plate, provided with a contact bearing surface, engaging with the hub section, for supporting the outer rim section, when any excess load or strain is applied to the wheel, forming a solid like wheel under these conditions, substantially as and for the purposes specified."

The alleged infringing wheels have rubber tires, for use on automobile trucks running over ordinary roads. The patent is manifestly directed to car wheels, with metal tires designed to run on metal rails. One of the main objects of the patent is to prevent the noise incident to such rail traffic, through the interposition of a "non-sound conducting material" in the wheel, between its rim and its bub. This element of noise, so objectionable in rail traffic, is hardly a problem in the rubber-tired vehicle designed for the usual road travel, since, in such, sound-deadening material is in direct contact with the road itself. The sound-deadening element in claim 1 ties that claim inseparably to the railroad art, wherein the claim may have merit, but does

vehicles for road traffic, for which the element of non-sound conducting material in this combination claim would have no utility.

Claims 3 and 5 are directed to the element of annular metal flanges bolted in the outer and inner sides of the rim portion, and of the hub portion respectively, in such relation that the resilient substance interposed between the rim and the hub portion normally holds them apart, the flanges preventing the resilient element from crushing under unusual loads through the contacting of the flanges with each other or application of such load. We think it abundantly appears from the evidence that in the operation of appellee's wheel there would be no such contact, and that such contact is not within the purview of its construction, and that the metal flanges there serve a purpose quite different from that in claims 3 and 5.

The experimental test applied to appellee's wheel does not aid the contention of infringement. Upon one of the wheels there was placed an arrangement of powerful bolts and plates for drawing together the rim and hub parts to learn whether the opposite edges of the flanges could thus be brought into contact. A long wrench was employed, and by the continuous application of the equivalent of many tons of compression, contact was obtained, except as some of the intervening rubber was forced out and held between the flanges. The rubber tire of the wheel was removed before the pressure was applied; otherwise, no doubt, the tremendous force would have crushed the rubber tire. Such was the resistance of the wheel to this extraordinary application of force that the hub portion became more or less cracked and separated. It is evident that in the use, normal or abnormal, of appellee's wheel, it would not be subjected to anywhere near the burden or strain which was thus experimentally applied. The question of infringement cannot fairly be thus tested.

We believe the District Court was correct in its conclusion that appellee's wheel, which is the subject-matter of the suit, does not infringe claims 3 and 5, and likewise in concluding that claim 1, if applied to the automobile truck art, would be invalid.

The decree of the District Court is affirmed.

1922, sustaining the validity of the patent as to various corporations controlled and

V. GEROSA et al.

(Circuit Court of Appeals, Sixth Circuit. October 16, 1925.)

No. 4320, 4403.

1. Patents 129-Defendant charged with Joint infringement through conspiracy to violate consent decree against codefendants, held entitled to test validity.

Defendant, charged with joint infringement as result of conspiracy to violate prior consent decree against codefendants holding patent valid, by sale of infringing devices to such codefendants, held entitled to test validity of patent,

in so far as it had not sold device to parties bound by consent decree.

2. Patents 328-1,263,879, for crank case repair arm, held invalid.

Gerosa patent, 1,263,879, for crank case repair arm, particularly for Ford automobiles, held invalid for want of invention.

3. Patents 287-Manufacturer of infringing device for others held chargeable with knowledge of consent decree against them, and liable as joint infringer.

Manufacturer, who discontinued furnishing infringing devices to others on filing of suit against latter, but subsequently after such parties had agreed to discontinue infringement and consented to decree against them, resumed sale to one of them under assumed business names, held chargeable with notice of consent decree, and liable as joint infringer in subsequent suit, though patent was therein held invalid.

Appeals from the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.

Suit by Anthony Gerosa and the Judson Motor Specialties Company against the Columbia Metal Stamping & Die Company. From the judgment, plaintiffs appeal, and the named defendant cross-appeals. Affirmed on both appeals.

J. King Harness, of Detroit, Mich., for

Gerosa and another.

James M. McSweeney, of Cleveland, Ohio (Ray S. Gehr, of Cleveland, Ohio, on the brief), for Columbia Metal Stamping & Die

also charged. None of the defendants but the Columbia Metal Stamping & Die Company made defense in the court below. That company, not being a party to the consent decree, put in issue the validity of the patent and denied infringement.

for want of invention, except as to those The lower court adjudged the patent void bound by the consent decree, but held the Columbia Company liable as a joint or contributing infringer with the defendant Simmons, in so far as that company had made and furnished to Simmons the alleged infringing devices in violation of that decree. From the adjudication of invalidity the patentee and his licensee have appealed, and on the latter ruling the Columbia Company has filed a cross-appeal.

[1,2] The right to test the validity of the patent in this proceeding is open to the Columbia Company, in so far as it has not sold the device to those bound by the conin Hudson Motor Specialties Co., etc., v. sent decree. That question was considered Apco Manufacturing Co. (D. C.) 288 F. 871, where the patent was adjudged invalid for lack of invention, and the judgment affirmed on appeal to the First Circuit. Gerosa v. Apco Mfg. Co. (C. C. A.) 299 F. 19. The evidence in this case is not different in any substantial respect from that adduced in the Apco Company Case. The testimony as to the functions of the device, as well as that relating to prior uses, is fully set forth in the opinions in that case. We conclude with the District Court that its weight is against validity.

[3] The cross-appeal challenges that part of the decree holding the Columbia Company jointly liable with Simmons as an infringer on the sales made to him. That phase of the judgment rests on the decree of May 11, to of which he signed an agreement April 26, which Simmons was privy, in anticipation

Co.

MOORMAN, Circuit Judge. This is a suit for infringement of United States letters patent 1,263,879, known as the Gerosa patent. Joint infringement as a result of conspiracy to violate a consent decree of May 11,

was entered, had made the device for the Lake Erie Accessories Company and the other defendants enjoined, which were controlled and dominated by Simmons. After the suit was filed, it discontinued furnishing the device to them, but shortly after the agreement of April 26 was entered into re

sumed its relations with Simmons under his assumed business names, manufacturing and supplying him with such of the devices as he ordered. It claims that it did not know of the existence of the decree, but the trial judge, after carefully considering the evidence, rightly concluded, we think, that it was chargeable with knowledge thereof, and to the extent that it had furnished the device to Simmons should be held as a tort-feasor, because it knowingly and intentionally had contributed to his infringement.

accidental means, if his death should result from such injury alone within 120 days. The petition contained allegations to the effect that the insured, during the continuance of the certificate, in cranking or undertaking to crank an automobile, was injured by the acute dilatation of his heart and the muscles thereof, such condition of dilatation being the direct and immediate result of external, violent and accidental means, and that from said result alone he died within 2 days from the time said injury was received. Those al

One who by voluntary exertion in effort to crank automobile, caused an acute dilatation of his heart and muscles thereof, from which he died within two days, held not to have sustained injury as result of "external, violent, and accidental means," within meaning of insurance policy.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, External, Violent, and Accidental Means.]

In Error to the District Court of the United States for the Southern District of Georgia; William H. Barrett, Judge.

Action by Rosa A. Carswell against the Railway Mail Association. Judgment of nonsuit, and plaintiff brings error. Affirmed.

E. K. Wilcox, of Valdosta, Ga. (Parker, Parker & Quarterman, of Waycross, Ga., and T. G. Connell, of Valdosta, Ga., on the brief), for plaintiff in error.

Leon A. Wilson and Larry E. Pedrick, both of Waycross, Ga. (Wilson, Bennett & Pedrick, of Waycross, Ga., on the brief), for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge. This was an action by the plaintiff in error, the beneficiary in a benefit certificate issued to her husband, which provided for the payment to her of a stated sun in the event of the death of her husband, resulting from bodily injury received during the continuance of the certificate through external, violent, and

clusion of the evidence, the court ordered an involuntary nonsuit.

Evidence adduced tended to prove that the death of the insured was due to dilatation of his heart, which was caused by his cranking or attempting to crank an automobile. The circumstances of his attempting to crank the car were deposed to by eyewitnesses. That testimony was to the following effect: After the insured discovered that he could not start the car with the self-starter, because that appliance would not work, his son undertook, without success, to crank it. Thereupon the insured took hold of the crank, and kept hold of it while it was spinning, without starting the motor, until he let go, raised up, and took a long breath, as if he was exhausted. The running gear of the car was low, so that to crank it one had to lean over to catch the crank and spin it. The testimony of the plaintiff included the following: "In undertaking to crank the car and in spinning the crank he twisted his body; it was in the same way that automobiles are usually cranked." There was no evidence tending to prove that insured leaned tionally, or that anything unforeseen or unor twisted his body, otherwise than intenintended occurred while he was trying to crank the car.

Where one voluntarily undergoes physical exertion, and nothing unexpected or unintended happens while he is doing so, the fact that such exertion unintentionally and unexpectedly causes injury does not make the means whereby such injury is caused, namely, the voluntary exertion, accidental. The physical injury caused by voluntary exertion or strain, which is unaccompanied by anything which is involuntary, unforeseen, and unusual, is not a result of "external, violent, and accidental means," within the meaning of the instrument sued on. Cobb v. Preferred Mutual Accident Association, 96 Ga. 818, 22 S. E. 976; Fulton v. Metropolitan Casualty Ins. Co., 19 Ga. App. 127, 91 S. E. 228; Whitehead v. Railway Mail Associ

ation (C. C. A.) 269 F. 25; Hastings v. Travelers Ins. Co. (C. C.) 190 F. 258. The correctness of the just stated proposition was recognized in the opinion in the case of United States Mutual Accident Association v. Barry, 131 U. S. 100, 121, 9 S. Ct. 755, 33 L. Ed. 60. There was evidence in that

case to support a finding that the jump which resulted in injury was not accomplished in the manner intended, and that something unexpected and involuntary happened to prevent the success of the attempt. As above indicated, there was no evidence in the instant case to support a finding that anything unexpected or involuntary happened while the insured was trying to start the car. The evidence adduced required the conclusion that the death of the insured was caused by his own voluntary act in trying to start the car, and was inconsistent with the conclusion that the injury causing death was received through external, violent, and accidental

means within the terms of the certificate. It follows that the ruling complained of was not erroneous. Affirmed.

UNITED STATES v. MOBILE & O. R. CO. (Circuit Court of Appeals, Fifth Circuit. October 30, 1925.)

No. 4591.

1. Appeal and error 695 (2)-Whether denial of motion for directed verdict as to all counts of complaint was error cannot be determined from bill of exceptions containing evidence only as to two counts.

Where exception was taken to denial of motion for directed verdict on all four counts of a complaint by the United States, under Safety Appliance Act 1893, as amended (Comp. St. § 8605 et seq.), but bill of exception contained only evidence submitted on two counts, it is impossible to determine whether error was committed in denial of motion for directed verdict on all counts.

2. Appeal and error 273 (11)-Where no separate motion for verdict was made or ex

ceptions taken as to separate counts, assign

ments of error as to them must fall.

In suit by United States against railroad for violation of Safety Appliance Act 1893, as amended (Comp. St. § 8605 et seq.), where complaint contained four separate counts, and where plaintiff excepted to denial of motion to direct verdict in its favor on all four counts, assignments of error to separate counts must

fall, where there are no separate motions for verdict or exceptions taken, since it does not follow, because trial court denied motion for directed verdict on all four counts, that it would have denied motion to direct a verdict on a single count.

In Error to the District Court of the Unit

ed States for the Southern District of Alabama; Robert T. Ervin, Judge.

Action at law by the United States against the Mobile & Ohio Railroad Company. Judgment for defendant, and the United States brings error. Affirmed.

James S. Hawley, Sp. Asst. U. S. Atty., of Washington, D. C., Jos. W. John, Asst.

U. S. Atty., of Mobile, Ala. (Aubrey Boyles, U. S. Atty., of Mobile Ala., on the brief), for the United States.

David B. Goode, of Mobile, Ala. (Stevens, McCorvey, McLeod, Goode & Turner, of Mobile, Ala., on the brief), for defendant in

error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

PER CURIAM. This is a suit to recover penalties for violations of the Safety Appliance Act of 1893 (27 Stat. 531. as amended [Comp. St. § 8605 et seq.]). The complaint consists of four counts, each charging a separate and distinct violation. Exception was taken to the denial of plaintiff's motion at the close of the evidence to direct a verdict in its favor on all the counts. There was a verdict and judgment for defendant.

[1,2] The bill of exceptions contains the evidence submitted on the first and fourth counts, but does not purport to include all the evidence on the second and third counts. It is therefore impossible to determine that the trial court committed error in denying plaintiff's motion for a directed verdict on all the counts. The assignments of error relate only to the first and fourth counts; but, as no separate motion for a verdict was made and exception taken as to them, they must fall. It does not follow, because

the trial court denied the motion directed to all four counts that it would have denied a motion directed to a single count. The result is that plaintiff is without the proper exception upon which to base its assignments of error.

The judgment is affirmed.