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Before ALSCHULER and ANDERSON, not admit of its application to rubber-tired Circuit Judges, and LINDLEY, District vehicles for road traffic, for which the eleJudge.

ment of non-sound conducting material in

this combination claim would have no utility. ALSCHULER, Circuit Judge. The ap- Claims 3 and 5 are directed to the element peal is from a decree in favor of appellee in of annular metal flanges bolted in the outer an action for infringement of claims 1, 3, and inner sides of the rim portion, and of and 5 of appellant's United States patent the hub portion respectively, in such relation No. 982,217, January 17, 1911, for a "flexi- that the resilient substance interposed beble car wheel.” The claims are:

tween the rim and the hub portion normally "1. In a flexible car wheel, the combina- holds them apart, the flanges preventing the tion, of a central hub portion, and an outer resilient element from crushing under unrim portion, arranged with an annular recess usual loads through the contacting of the or opening between said hub portion and said flanges with each other or application of such rim portion, flexible material, arranged in load. We think it abundantly appears from said annular recess, non-sound conducting the evidence that in the operation of appelmaterial, arranged upon the sides of the flexi- lee's wheel there would be no such contact, ble car wheel, substantially as and for the and that such contact is not within the purpurposes specified."

view of its construction, and that the metal “3. In a flexible car wheel, the combina- flanges there serve a purpose quite different tion, of a hub section, and a rim section, flex- from that in claims 3 and 5. ible material, interposed between said sec- The experimental test applied to appellee's tions, a side or flange extension of the rim wheel does not aid the contention of infringesection, arranged for operative contact with ment. Upon one of the wheels there was the hub section, for limiting the movement of placed an arrangement of powerful bolts and the rim section, with the hub section, substan- plates for drawing together the rim and hub tially as and for the purposes specified.” parts to learn whether the opposite edges of

"5. In a flexible car wheel, the combina- the flanges could thus be brought into contion, of a hub section, and a rim section, flex- tact. A long wrench was employed, and by ible material interposed between said sec- the continuous application of the equivalent tions, a follower plate, provided with a con- of many tons of compression, contact was tact bearing surface, engaging with the hub obtained, except as some of the intervening section, for supporting the outer rim section, rubber was forced out and held between the when any excess load or strain is applied to flanges. The rubber tire of the wheel was rethe wheel, forming a solid like wheel under moved before the pressure was applied; oththese conditions, substantially as and for the erwise, no doubt, the tremendous force would purposes specified."

have crushed the rubber tire. Such was the The alleged infringing wheels have rubber resistance of the wheel to this extraordinary tires, for use on automobile trucks running application of force that the hub portion beover ordinary roads. The patent is manifest- came more or less cracked and separated. It ly directed to car wheels, with metal tires de- is evident that in the use, normal or abnorsigned to run on metal rails. One of the main mal, of appellee's wheel, it would not be subobjects of the patent is to prevent the noisejected to anywhere near the burden or strain incident to such rail traffic, through the in- which was thus experimentally applied. The ter position of a "non-sound conducting ma- question of infringement cannot fairly be terial” in the wheel, between its rim and its thus tested. bub. This element of noise, so objectionable We believe the District Court was correct in rail traffic, is hardly a problem in the rub- in its conclusion that appellee's wheel, which ber-tired vehicle designed for the usual road is the subject-matter of the suit, does not intravel, since, in such, sound-deadening mate fringe claims 3 and 5, and likewise in conrial is in direct contact with the road itself. cluding that claim 1, if applied to the autoThe sound-deadening element in claim 1 ties mobile truck art, would be invalid. that claim inseparably to the railroad art, The decree of the District Court is afwherein the claim may have merit, but does firmed.

8 F.(20) 611 GEROSA et al. V. COLUMBIA METAL 1922, sustaining the validity of the patent STAMPING & DIE CO.

as to various corporations controlled and COLUMBIA METAL STAMPING & DIE CO. dominated by defendant J. C. Simmons, was v. GEROSA et al.

also charged. None of the defendants but (Circuit Court of Appeals, Sixth Circuit

the Columbia Metal Stamping & Die ComOctober 16, 1925.)

pany made defense in the court below. That

company, not being a party to the consent No. 4320, 4403.

decree, put in issue the validity of the pat1. Patents 129–Defendant charged with ent and denied infringement.

Joint infringement through conspiracy to violate consent decree against codefendants, for want of invention, except as to those

The lower court adjudged the patent void held entitled to test validity.

Defendant, charged with joint infringement bound by the consent decree, but held the as result of conspiracy to violate prior consent Columbia Company liable as a joint or condecree against codefendants holding patent tributing infringer with the defendant Simvalid, by sale of infringing devices to such codefendants, held entitled to test validity of patent,

mons, in so far as that company had made in so far as it had not sold device to parties and furnished to Simmons the alleged inbound by consent decree.

fringing devices in violation of that decree.

From the adjudication of invalidity the pat2. Patents em 328—1,263,879, for crank case repair arm, held invalid.

entee and his licensee have appealed, and on Gerosa patent, 1,263,879, for crank case

the latter ruling the Columbia Company has repair arm, particularly for Ford automobiles, filed a cross-appeal. heid invalid for want of invention.

[1,2] The right to test the validity of the 3. Patents On 287–Manufacturer of infringing patent in this proceeding is open to the

device for others held chargeable with Columbia Company, in so far as it has not knowledge of consent decree against them, sold the device to those bound by the conand liable as joint infringer.

sent decree. That question was considered Manufacturer, who discontinued furnishing in Hudson Motor Specialties Co., etc., v. infringing devices to others on filing of suit against latter, but subsequently after such par. Apco Manufacturing Co. (D. C.) 288 F. ties had agreed to discontinue infringement 871, where the patent was adjudged invalid and consented to decree against them, resumed for lack of invention, and the judgment afsale to one of them under assumed business firmed on appeal to the First Circuit. Gernames,

held chargeable with notice of consent decree, and liable as joint infringer in subse- osa v. Apco Mfg. Co. (C. C. A.) 299 F. 19. quent suit, though patent was therein held in- The evidence in this case is not different in valid.

• any substantial respect from that adduced

in the Apco Company Case. The testimony Appeals from the District Court of the

as to the functions of the device, as well United States for the Eastern Division of the

as that relating to prior uses, is fully set Northern District of Ohio; D. C. Westen- forth in the opinions in that case.

We conhaver, Judge.

clude with the District Court that its weight Suit by Anthony Gerosa and the Judson is against validity. Motor Specialties Company against the Co- [3] The cross-appeal challenges that part lumbia Metal Stamping & Die Company. of the decree holding the Columbia Company From the judgment, plaintiffs appeal, and jointly liable with Simmons as an infringer the named defendant cross-appeals. Af

on the sales made to him. That phase of the firmed on both appeals.

judgment rests on the decree of May 11, to J. King Harness, of Detroit, Mich., for which Simmons was privy, in anticipation

J. King Harness, of Detroit, Mich., for of which he signed an agreement April 26, Gerosa and another.

James M. McSweeney, of Cleveland, Ohio 1922, by which he obligated himself no lon (Ray S. Gehr, of Cleveland, Ohio, on the to destroy or ship to plaintiffs all dies in his

ger to make or sell the infringing device and brieť), for Columbia Metal Stamping & Die possession which had been used in making

, Co.

it. The Columbia Company, before the filBefore DENISON, DONAHUE, and ing of the suit in which the consent decree MOORMAN, Circuit Judges.

was entered, had made the device for the

Lake Erie Accessories Company and the othMOORMAN, Circuit Judge. This is a suit er defendants enjoined, which were for infringement of United States letters trolled and dominated by Simmons. After petent 1,263,879, known as the Gerosa pat- the suit was filed, it discontinued furnishent. Joint infringement as a result of con- ing the device to them, but shortly after the spiracy to violate a consent decree of May 11, agreement of April 26 was entered into re

con

sumed its relations with Simmons under his accidental means, if his death should result assumed business names, manufacturing and from such injury alone within 120 days. The supplying him with such of the devices as petition contained allegations to the effect he ordered. It claims that it did not know of that the insured, during the continuance of the existence of the decree, but the trial the certificate, in cranking or undertaking to judge, after carefully considering the evi- crank an automobile, was injured by the dence, rightly concluded, we think, that it acute dilatation of his heart and the muscles was chargeable with knowledge thereof, and thereof, such condition of dilatation being the to the extent that it had furnished the device direct and immediate result of external, vioto Simmons should be held as a tort-feasor, lent and accidental means, and that from because it knowingly and intentionally had said result alone he died within 2 days from contributed to his infringement.

the time said injury was received. Those alThe judgment on both appeals is affirmed. legations were put in issue. At the con

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 CARSWELL V. RAILWAY MAIL ASS'N.

of his heart, which was caused by his crank(Circuit Court of Appeals, Fifth Circuit.

ing or attempting to crank an automobile. October 21, 1925.)

The circumstances of his attempting to crank No. 4593.

the car were deposed to by eyewitnesses. Insurance 455Acute dilatation of heart

That testimony was to the following effect: and muscles from voluntary exertion not in. After the insured discovered that he could jury from "external, violent, and accidental not start the car with the self-starter, bemeans."

cause that appliance would not work, his son One who by voluntary exertion in effort to undertook, without success, to crank it. crank autoinobile, caused an acute dilatation of Thereupon the insured took hold of the crank, his heart and muscles thereof, from which he died within two days, held not to have sustain- and kept hold of it while it was spinning, ed injury as result of "external, violent, and without starting the motor, until he let go, accidental means," within meaning of insurance raised up, and took a long breath, as if he policy.

was exhausted. The running gear of the car [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Exter

was low, so that to crank it one had to lean nal, Violent, and Accidental Means.]

over to catch the crank and spin it. The

testimony of the plaintiff included the folIn Error to the District Court of the lowing: “In undertaking to crank the car United States for the Southern District of and in spinning the crank he twisted his Georgia; William H. Barrett, Judge. body; it was in the same way that auto

Action by Rosa A. Carswell against the mobiles are usually cranked." There was no Railway Mail Association. Judgment of

evidence tending to prove that insured leaned nonsuit, and plaintiff brings error. "Affirmed. or twisted his body, otherwise than inten

tionally, or that anything unforeseen or unE. K. Wilcox, of Valdosta, Ga. (Parker, intended occurred while he was trying to Parker & Quarterman, of Waycross, Ga., crank the car. and T. G. Connell, of Valdosta, Ga., on the Where one voluntarily undergoes physical brief), for plaintiff in error.

exertion, and nothing unexpected or uninLeon A. Wilson and Larry E. Pedrick, tended happens while he is doing so, the fact both of Waycross, Ga. (Wilson, Bennett & that such exertion unintentionally and unPedrick, of Waycross, Ga., on the brief), for expectedly causes injury does not make the defendant in error.

means whereby such injury is caused, nameBefore WALKER, BRYAN, and FOS- ly, the voluntary exertion, accidental. The TER, Circuit Judges.

physical injury caused by voluntary exertion

or strain, which is unaccompanied by any. WALKER, Circuit Judge. This was an thing which is involuntary, unforeseen, and action by the plaintiff in error, the bene- unusual, is not a result of "external, violent, ficiary in a benefit certificate issued to her and accidental means," within the meaning husband, which provided for the payment of the instrument sued on. Cobb v. Preto her of a stated sunı in the event of the ferred Mutual Accident Association, 96 Ga. death of her husband, resulting from bodily 818, 22 S. E. 976; Fulton v. Metropolitan injury received during the continuance of Casualty Ins. Co., 19 Ga. App. 127, 91 S. the certificate through external, violent, and E. 228; Whitehead v. Railway Mail Associ.

error.

8 F.(20) 613 ation (C. C. A.) 269 F. 25; Hastings v.

fall, where there are no separate motions for Travelers Ins. Co. (C. C.) 190 F. 258. The

verdict or exceptions taken, since it does not

follow, because trial court denied motion for correctness of the just stated proposition was

directed verdict on all four counts, that it recognized in the opinion in the case of would have denied motion to direct a verdict United States Mutual Accident Association on a single count. V. Barry, 131 U. S. 100, 121, 9 S. Ct. 755, 33 L. Ed. 60. There was evidence in that

In Error to the District Co of the Unitcase to support a finding that the jump which ed States for the Southern District of Alabaresulted in injury was not accomplished in ma; Robert T. Ervin, Judge. the manner intended, and that something un- Action at law by the United States against expected and involuntary happened to pre- the Mobile & Ohio Railroad Company. vent the success of the attempt. As above Judgment for defendant, and the United indicated, there was no evidence in the in- States brings error. Affirmed. stant case to support a finding that anything unexpected or involuntary happened while of Washington, D. C., Jos. W. John, Asst.

James S. Hawley, Sp. Asst. U. S. Atty., evidence adduced required the conclusion that U. S. Atty., of Mobile, Ala. (Aubrey Boyles, the death of the insured was caused by his U. S. Atty., of Mobile Ala., on the brief),

for the United States. own voluntary act in trying to start the car, and was inconsistent with the conclusion McCorvey, McLeod, Goode & Turner, of

David B. Goode, of Mobile, Ala. (Stevens, that the injury causing death was received Mobile, Åla., on the brief), for defendant in through external, violent, and accidental means within the terms of the certificate. It follows that the ruling complained of was

Before WALKER, BRYAN, and FOSnot erroneous,

TER, Circuit Judges. Affirmed.

PER CURIAM. This is a suit to recover penalties for violations of the Safety Appli

ance Act of 1893 (27 Stat. 531. as amended UNITED STATES V. MOBILE & O. R. CO. [Comp. St. § 8605 et seq.]).

The com(Circuit Court of Appeals, Fifth Circuit. plaint consists of four counts, each charging October 30, 1925.)

a separate and distinct violation. Exception No. 4591.

was taken to the denial of plaintiff's motion

at the close of the evidence to direct a ver1. Appeal and error Om695(2)—Whether de.

dict in its favor on all the counts. There nial of motion for directed verdict as to all counts of complaint was error cannot be de

was a verdict and judgment for defendant. termined from bill of exceptions containing

[1, 2] The bill of exceptions contains the evidence only as to two counts.

evidence submitted on the first and fourth Where exception was taken to denial of counts, but does not purport to include all motion for directed verdict on all four counts the evidence on the second and third counts. of a complaint by the United States, under It is therefore impossible to determine that Safety Appliance Act 1893, as amended (Comp. St. $ 8605 et seq.), but bill of exception con

the trial court committed error in denying tained only evidence submitted on two counts, plaintiff's motion for a directed verdict on it is impossible to determine whether error was all the counts. The assignments of error committed in denial of motion for directed relate only to the first and fourth counts; verdict on all counts.

but, as no separate motion for a verdict 2. Appeal and error w273(11)-Where no

was made and exception taken as to them, separate motion for verdict was made or ex. ceptions taken as to separate counts, assign they must fall. It does not follow, because ments of error as to them must fall.

the trial court denied the motion directed In suit by United States against railroad to all four counts that it would have denied for violation of Safety Appliance Act 1893, as a motion directed to a single count. The amended (Comp. St. § 8605 et seq.), where result is that plaintiff is without the proper complaint contained four separate counts, and where plaintiff excepted to denial of motion to exception upon which to base its assignments direct verdict in its favor on all four counts, of error. assignments of error to separate counts must The judgment is affirmed.

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8 FEDERAL REPORTER, 28 SERIES

0,717 Ep.827 47 EBENFIELD v UNITED STATES.*

KUHLKE MACH, CO, V. MILLER

RUBBER CO.
October 26, 1925.)

(District Court, N. D. Ohio, E, D, October 19, elreglarze Circuit Court of Appeals, Fifth Circuit

1925.)
No. 4580.

No. 1290.
Conspiracy Om 48—Instruction that conspiracy

could be found from particular ovidence held 1. Patents am 283(1) - Suit for infringement
not erroneous.

maintainable on issued patent, pending interInstruction that evidence that one defend

ference declared against patent with another ant furnished another copper and materials

application. for making a still, and sugar and meal for Owner of patent may maintain suit thereon manufacture of liquor, in violation of National for infringement, pending interference declared Prohibition Act (Comp. St. Ann. Supp. 1923, against the patent with application of another § 1013874 et seq.), if believed, would warrant for patent, before question of priority of infinding of conspiracy, held not erroneous, as vention is determined in the interference proinstruction that mere sale of described ma- ceeding; Rev. St. 4904 et seq. (Comp. St. & terials to persons who had conspired to vio- 9449 et seq.), being exclusive only as steps or late law would make seller a co-conspirator. means to procure issuance of a patent, and

not in the sense that owner of issued patent In Error to the District Court of the

may not, pending such proceedings, maintain United States for the Southern District of suit thereon, in which the question of priority Georgia; Wm. H. Barrett, Judge.

may be determined.

on E. A. Edenfield was convicted of con

2. Patents 313-Suit not dismissed

ground of triviality of infringement, on mere spiracy to violate the National Prohibition

unadmitted allegations of answer. Act, and he brings error. Affirmed.

Suit for infringement of patent will not be Frank H. Saffold, of Swainsboro, Ga., and dismissed on the ground of triviality of inJohn D. Kirkland and T. H. Kirkland, both fringement, on the mere unadmitted allegation

of the answer that use was only in an experiof Metter, Ga., for plaintiff in error.

mental way, and discontinued on filing of bill. F. G. Boatright, U. S. Atty., of Cordele, Ga., Chas. L. Redding, Asst. U. S. Atty., In Equity. Suit by the Kuhlke Machine of Savannah, Ga. (B. S. Deaver, Asst. U. Company against the Miller Rubber ComS. Atty., of Macon, Ga., on the brief), for pany for infringement of patent. On motion the United States.

to dismiss, or stay further prosecution. MoBefore WALKER, BRYAN, and FOS- tion denied. TER, Circuit Judges.

Albert L. Ely, of Akron, Ohio, for plain

tiff. PER CURIAM. The indictments in these

Hull, Brock & West, of Cleveland, Ohio, cases charge conspiracies to manufacture in- and Munn, Anderson & Munn, of New York toxicating liquor in violation of the National Prohibition Act (Comp. Sti

. Ann. Supp.

City, for defendant. 1923, § 10138/4 et seq.). The evidence for WESTENHAVER, District Judge. This the government tended to show that plain- is a patent infringement suit, based on Unittiff in error furnished to his codefendants ed States letters patent 1,490,468. The patcopper and other materials to be used in ent sued on was issued April 15, 1924, to one making a still, as well as sugar and meal to Otto J. Kuhlke, and by him assigned to the be used in the manufacture of liquor. plaintiff. Claims 1, 6, 14, 15, and 18 only One of the charges of the court was to the are in issue.

Defendant's answer sets up effect that this evidence, if believed, was suf- that claims 1, 14, and 15 are now in issue ficient to authorize the jury to infer a con- in an interference proceeding in the Patent spiracy between plaintiff in error and his Office between a pending application of codefendants to commit the offenses alleg- Peter De Mattia and Kuhlke's unexpired ed. The assignments of error are based patent. This interference was declared after solely on this charge, to which it is sought the Kuhlke patent issued, and before this to give the construction that the mere sale suit was begun. The infringement charge of the described materials to others, who is based on a use hy defendant of a device had conspired to violate the law, was suffi- embodying De Mattia's invention, manufaccient to make the seller a co-conspirator. tured by De Mattia Bros., who control, if Clearly the charge will not bear that inter- they do not own, the De Mattia application pretation, and was proper, because it mere- involved in the interference. It is further ly authorized the jury to infer an agree said that the defense of this action has been ment to do what was actually done.

taken over and is now being made by the The judgments are affirmed.

manufacturer. *Rehearing denied December 14, 1925.

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