[10] At the close of the charge to the jury, the court asked defendant's counsel if they had any suggestions to make. The record shows this to have occurred.

"Mr. Baer: The defendants and each of them desire to except to the charge of the court upon the subject of reasonable doubt, as not being a proper statement of the law upon the subject of reasonable doubt.

"The Court: In what respect?

"Mr. Baer: Well, I think it leaves to the jury the question of this doubt based upon a reason, and does not advise the jury specifically that a reasonable doubt, if it is created, is of itself sufficient, in the absence of all other evidence, to warrant an acquittal of the defendants."

The court had already in its instructions, after defining a reasonable doubt, specifically told the jury that if they had such a doubt as to the guilt of any or either of the defendants in the case, it was their duty to give such defendants the benefit of such doubt. After the jury had been out for some time, the court called them back and asked whether any question of law was troubling them, whereupon this occurred:

"The Juror: Well, we have had some discussion in regard to what would be considered a reasonable doubt.

"The Court: A reasonable doubt, gentlemen, is just such a doubt as the name implies-a doubt based upon reason, and that reason being based upon the evidence or lack

of evidence in the case. A reasonable doubt

is not the possibility of a doubt, nor the probability of a doubt, nor a speculative doubt, but a substantial doubt, based upon

the evidence or lack of evidence in the case. If, upon a consideration of all of the evidence in the case, you have a conviction amounting to a moral certainty that such and such is the case, then the proof is beyond a reasonable doubt. Is there anything else?

"Mr. Baer: The defendants and each of them except to the supplemental instruction given by the court upon the subject of alibi and upon the subject of reasonable doubt." [11] Under the rules of practice in this situation, the exception to what is called the supplemental instruction on reasonable doubt

presents no question at all. The exception is to the "supplemental instruction upon the subject of reasonable doubt." It does not point out wherein the instruction is wrong and thus give the court an opportunity to correct it. But we fail to see any error in the instruction complained of. It certainly is sound as far as it goes, and is not subject to the meticulous criticisms made of it in the briefs.

[12] The court directed the jury to find Dietmeyer not guilty on counts 3 and 4, apparently because there was no direct evidence that he had shared in the loot. His counsel insist that because of this, and the fact that he was not shown to be present at the time of the robbery, the case failed as to him. This ignores the fact that there was evidence before the jury which, if believed, was sufficient to show him quite active in the preparations for the robbery. As shown above, his presence at the robbery was not essential. Further complaint is made on behalf of Dietmeyer of the refusal to give his instruction as to his abandonment of the enterprise and of the court's instruction on this point. The request and the objections to the instructions given are based upon an erroneous conception of the crime charged and of the evidence adduced to establish it. Counsel argue that the joint enterprise in which he is shown to have been engaged had for its object the robbery of the mails on April 14 only,

and did not contemplate the robbery which was committed on May 26. The evidence showed a design and plan to rob the mail coming ined. It was first designed to rob it on April to Staunton when the circumstances warrant14, but "something went wrong" as one witness said, and the crime was postponed and actually committed May 26. Dietmeyer was shown to have been active in the preparations for robbing the mail upon its arrival at Staunton whenever it arrived and the surroundings were propitious. This broad and general plan included the robbery which was effected. He therefore aided and abetted in the commission of that robbery.

There is no substantial error in the record, and the judgment is affirmed.

Nos. 3499, 3502.

1. Patents 83-Subject-matter of patent for which divisional application was not made until more than three years after required

must be treated as abandoned.

Under Rev. St. § 4894 (Comp. St. § 9438), subject-matter of patent for which divisional application was not made until more than three years after it was required should have been treated as abandoned.

2. Patents 328-1,166,734, claim 15, held

invalid as uncertain and indefinite.

Anderson patent 1,166,734, claim 15, for carburetor attachments held invalid as being uncertain and indefinite.

3. Patents

328-1,128,773, claims I to 6, 11,

17 to 22, and 25 to 27, held invalid. Goldberg patents 1,128,773, claims 1 to 6, 11, 17 to 22, and 25 to 27, for carburetor attachments held invalid.

4. Patents 328-1,335,389 held not infringed. Rayfield patent No. 1,335,389 for carburetor improvements held not infringed.

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; James H. Wilkerson, Judge.

Consolidated patent infringement suits by the Stromberg Motor Devices Company by the Stromberg Motor Devices Company against the Benecke & Kropf Manufacturing Company, wherein defendant counterclaims. From judgments for defendant on the suits brought by plaintiff, and for plaintiff on defendant's counterclaims, both parties appeal.

Affirmed.

Charles A. Brown and Arthur H. Boettcher, both of Chicago, Ill., for plaintiff. Charles W. Hills and Charles W. Hills, Jr., both of Chicago, Ill., for defendant.

Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.

PAGE, Circuit Judge. Plaintiff appellant in Nos. 3499 and 3501 and defendant appellee in Nos. 3500 and 3502 is here called plaintiff. Defendant appellee in Nos. 3499 and 3501 and plaintiff appellant in Nos. 3500 and 3502 is here called defendant.

The District Court consolidated all cases, and, after hearing, dismissed them. There

405

is here presented the question of infringement of plaintiff's Goldberg patent No. 1,128,773, where claims 1 to 6, 11, 17 to 22, and 25 to 27, are involved, and of plaintiff's Anderson patent No. 1,166,734, where claim 15 only is involved. Defendant's counterclaim brings into question the infringement of Rayfield patent No. 1,335,389.

Goldberg patent No. 1,128,773: December 17, 1910, Goldberg filed application, on which, on December 1, 1914, patent No. 1,119,078 was issued on certain claims. Within 60 days after filing that application, he was told that his 21 claims were drawn for no less than four separate inventions. A division was required, and applicant notified to cancel certain matters and modify his drawings. On March 19, 1914, more than three years after it was required, a divisional application was filed by Goldberg, for and upon which patent No. 1,128,773, in suit was issued February 16, 1915.

In 1909 Goldberg and one Tillotson made application and were granted, June 9, 1914, patent No. 1,099,293.

In his divisional application for the Goldberg patent in suit he said: "In patent No. 1,099,293, issued June 9, 1914, to Harry C. Tillotson and myself as joint inventors, there is set forth and claimed an arrangement wherein a secondary fuel inlet is provided, and wherein this secondary fuel inlet is permanently open to the carbureting chamber below the throttle. In that application, the height of the nozzle is relied upon to effect the necessary delay in the response of the

secondary fuel nozzle, while in the present application, the secondary fuel nozzle is controlled by a valve which co-operates with the valve for the auxiliary air inlet so that the fuel nozzle is opened at the inception of the opening movement of the air valve or at a definite point after the air valve has opened."

That statement as to the Goldberg & Tillotson patent seems to be contradicted by the specification of that patent, viz.: "The response of the auxiliary fuel is delayed with the delay in the response of the auxiliary air valve until the greater suctions are attained and this delay may be made more definite by disposing the second nozzle at a higher level than the first nozzle. After the response of both auxiliary air and fuel, the air valve being properly retarded as above described, the co-operation resides in the fact that the issue from the nozzle varies with the aspiration, and the aspiration is determined by the opening of the air valve due to suction."

Further reference to the specification will show that the statement that the "secondary fuel inlet is permanently open to the carbureting chamber below the throttle" is also misleading, because the application shows that there was provided a so-called "bleeding means for positively preventing even the slightest issue from the fuel nozzle 89 before the auxiliary air valve is opened." The auxiliary fuel nozzle in the Goldberg patent in suit was no more effectively closed by the valve, or cap, over the end of it. In argument, counsel for plaintiff said: "In the Goldberg-Tillotson carbureter, such control of fuel as there is is obtained indirectly through the control of the air bleed, which delays response of the fuel, and, after response, involves the displacing of gasoline by air until the bleed is closed entirely. In the Goldberg structure the valve is applied directly to the solid column of gasoline, and the response is immediate from a minute supply when the valve begins to open, and increasing until the maximum capacity of the nozzle is reached."

There is no evidence in the record to support any such supposed differences. Plaintiff's expert witness was asked nothing about the Goldberg & Tillotson patent on direct examination, and on cross-examination plaintiff succeeded in preventing its witness from answering a question involving that identical

matter.

Specification of the Goldberg & Tillotson patent, speaking of the bleeding means, says: "This feature includes means for adjustment by which the bleeder may be brought into and out of action and by means of which, when the bleeder is in action, the response of fuel from the nozzle 89 may be definitely and adjustably delayed even somewhat beyond the opening of the auxiliary air valve." Claims 7 and 8, and perhaps other claims, of the Goldberg patent show clearly that there is an adjustable regulation.

Pointing out the difference between the Goldberg & Tillotson patent and the Goldberg patent in suit, defendant's witness Kinealy said: "The principal difference between the auxiliary carburetor of the Goldberg & Tillotson patent and the auxiliary carbureting element of the Goldberg patent in suit lies in the fact that in the Goldberg & Tillotson the auxiliary fuel inlet is not closed nor is it controlled in any sense other than the flow of the fuel through it is controlled, while in the Goldberg patent in suit the auxiliary fuel inlet is physically controlled by a valve that is seated upon it and

it is closed by physically seating a valve on it."

The flow of the fuel being controlled, the means of control, in this case, is immaterial, because we are of opinion that in the Goldberg patent there was involved in this respect nothing more than simple mechanical operation that was not invention.

Plaintiff, in argument, has attempted to show that the Goldberg & Tillotson carburetor had a defect, viz., in that there was a back fire which created an intolerable fire hazard, and that that defect was remedied in the Goldberg patent in suit. There is no justification in the record for such a contention. The record shows that the Goldberg & Tillotson carburetor was used on a Stoddard-Dayton car. Plaintiff's president testified:

"Q. Was there any difficulty encountered in the operation of the car with this type of carburetor? If so, what? A. There was a danger of fire on account of backfiring by reason of the peculiar construction of this particular motor.

"Q. Please state what was the success of the carburetor referred to, that is, the Goldberg & Tillotson, aside from this fault that you have mentioned. A. It was very satisfactory in its operation."

That was a motor, not a carburetor, difficulty, and there is no evidence or reasonable inference that the difficulty would have been remedied by the use of the Goldberg invention in question.

A reading of the 27 claims of the patent and the analyzation of them by plaintiff's expert witness Webster convinces us that the applicant, having no real substance to present in the application for the patent in question, was endeavoring to make a showing by the use of many words and the multiplication of claims.

[1] In the prosecution of the three patents, viz., the Goldberg & Tillotson patent, the original Goldberg patent, of which the patent in suit is divisional, and the patent in suit, resort was had to every possible means of delay, and, in the face of section 4894 of the Revised Statutes (Comp. St. § 9438), applicant filed a divisional application more than a year after the subject-matter thereof should, under that section, have been treated as abandoned.

Anderson Patent No. 1,166,734: Claim 15, which reads as follows, is involved: "15. In a carburetor, (1) a carbureting passage, (2) a throttle therein, (3) a fuel chamber feeding into said passage, (4) an auxiliary chamber fed from said fuel chamber and al

convincing that there would be no refilling of the well and no further action of the diaphragm without at least closing and again opening the throttle.

This

Defendant's counterclaim: Defendant has a counterclaim in which it is charged that plaintiff infringes certain claims of defendant's Rayfield patent No. 1,335,389. counterclaim was not seriously urged upon oral argument. We are convinced, upon examination of the record, that there is no infringement of those claims.

[3, 4] We conclude, therefore, that claim 15 of the Anderson patent No. 1,166,734 is not only invalid, but that it is not infringed; that the Goldberg patent No. 1,128,773, as to the claims involved, is invalid; and that the Rayfield patent No. 1,335,389 is not infringed by the device of the plaintiff.

The decree of the District Court should be

2. Shipping 69-Master's right to libel vessel for costs of cure and maintenance not determined by matters stated.

Master's relation to seaman, and his inability to libel vessel for his wages, are not controlling on question whether he may libel vessel for costs of cure and maintenance after injury.

3. Shipping 69-Master entitled to recover cost of cure and maintenance from vessel. Master, injured in service of vessel, is entitled to recover, in libel against her, cost of his cure and maintenance.

Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.

Libel by Rupert Wry against the schooner Balsa; Albert D. Cummins, claimant. From a decree for libelant, respondent appeals. Affirmed.

Howard M. Long, of Philadelphia, Pa., for appellant.

Carl G. Kirsch, of Philadelphia, Pa., for appellee.

Before WOOLLEY and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge. The Schooner Balsa was lying at anchor off Staten Island waiting for a charter when Wry, her master, was hurt in her service. He was taken to the United States Marine Hospital at New York where he remained continuous

ly for twenty-eight days and from which he

was not finally discharged for three months. Later he filed a libel against the vessel, charging her owners with negligence in failing to keep her in a seaworthy condition and praying damages for his injury and payment of

his for cure and maintenance. The expenses court entered a decree refusing damages, but allowing him $765 to cover the latter claim. Thereupon the vessel took this appeal, charging error in the decree, first, for lack of evidence to sustain the award, and second, because under the admiralty law the master of a ship, as distinguished from a seaman, is not entitled to recover the costs of his cure and maintenance.

[1] Of course a seaman cannot recover costs of cure when, having received attention at a marine hospital, he has expended nothing in his cure. But expenses actually incurred for treatment beyond that which was given him without cost at such an hospital are recoverable, unless the seaman has rejected the hospital service when available (The Bouker No. 2 [C. C. A. 2d] 241 F. 831, 154 C. C. A. 533; The Santa Barbara [C. C. A. 2d] 263 F. 369), of which there is no evidence in this record.

While the opinion does not show just how the trial court computed the sum it allowed, there is evidence of expenses which when measured by the master's wages for the time embraced within the period of his cure is sufficient to sustain the award.

[2, 3] The important question in this case, however, is one of law and is whether the rule which gives a seaman the right to recover his costs of cure and maintenance extends to the master. If, instead of being master, Wry had been an ordinary seaman there is no doubt, under the law of The Osceola, 23 S. Ct. 483, 189 U. S. 158, 47 L. Ed. 760, that he would be entitled to recover costs of his cure and of his maintenance during cure. But the respondent maintains that a master is not a seaman within the meaning of the rule and