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10 F.(2d) 405 so feeding into said passage, and (5) means (a) In the auxiliary tank 17 the fuel for positively pumping the fuel from said level is much above the outlet 22, and the vent auxiliary chamber into said passage, (6) the 20 permits a normal atmospheric pressure, operation of said pumping means being in- so that no vacuum is created above the fuel duced by the opening of the throttle." (Fig. in 17. By the natural action of the elements, ures in parentheses are ours.)

therefore, the suction through 24 would pull [2] We are of opinion that this claim is in- the gasoline out of 17 and not through 25 valid because it is uncertain and indefinite. from the diaphragm chamber 26. This is The specification numbers and names the dif- recognized in the specification: "If the enferent parts shown on the drawing of the gine were to be turned over on closed or patent, and the only thing named in the spec- nearly closed throttle, the entire or at least ification as an auxiliary chamber is 17. 26 high vacuum thus produced would be effecis called a diaphragm chamber and 28 is tive through the pipe 24.

This called a fuel well. The fifth element of the would draw a high charge of fuel from the claim is "an auxiliary chamber fed from said auxiliary reservoir 17, as determined by the fuel chamber and also feeding into said pas- initial fuel level up through the pipe 24 and sage.” The auxiliary chamber 17 of the pat- into the engine.” ent is fed from the fuel chamber 8 and, in It seems certain that, with this operation, turn, feeds into the passage through the there would be no drawing of fuel through opening 22 and the pipe 24. Disregarding the pipe 25 against the influence of a vacuum the names applied in the patent, plaintiff which it is said that action would create in treats the fuel well 28 as the "auxiliary cham- chamber 26. ber" and contends that, under the conditions (b) The supposed operation could create named, it feeds, through 29 and 9, into the no vacuum in the diaphragm chamber, which nozzle. Here, then, are two chambers which is a dead end with no opening other than might respond to the fifth element of the through the pipe 25. There is no air vent. claim; the one the auxiliary chamber of the The fuel would pass through the opening 22 patent and the other called an auxiliary and the pipe 25, and, so far as could be chamber by plaintiff.

done, by compression of the air, would fill the Again, the last element, or statement, of diaphragm chamber, and, if there was a sucthe claim is "the operation of said pumping tion of the fuel out of the diaphragm chammeans being induced by the opening of the ber through the pipe 25, the air would still throttle.” This cannot be true, because the remain in the diaphragm chamber with its normal position of the diaphragm is down, normal pressure, unless and until there was as shown in the drawing. The first and most an exhaustion of the fuel passing through the important element in the alleged pumping opening 22 and the creation of a vacuum in process would be the raising of the dia- the auxiliary chamber 17. Practically, this phragm, and, theoretically, that would be could not happen. induced by the turning over of the engine (c) Plaintiff's expert, beyond saying that, with the throttle closed. The theory of the in the operation described, there would be a plaintiff is that the operation of the engine vacuum created in the diaphragm chamber, with the throttle closed creates a vacuum in made no attempt to show how the air would the carbureting chamber, and that fuel would be exhausted, but he did say that he thought be drawn up so that by suction through the the air in the fuel well 28, which is a dead pipes 24 and 25 a vacuum would be created end, and has no outlet except through the in the diaphragm chamber 26; and that by inlet 29, would ultimately, in an undefined reason thereof the diaphragm 27 would snap time, be discharged by some sort of breathup from its normal position, and by opening ing process. That conclusion seems to us to the throttle and thereby destroying the vac- be merely an unfounded speculation. uum at the opening of the pipe 24 fuel would (d) On cross-examination of plaintiff's drop back through the pipes 24 and 25 to expert, starting with the assumed fact that, the diaphragm chamber 26, filling the vac- after the opening of the throttle, there would uum and permitting the diaphragm to snap be a snapping down of the diaphragm which down, thus forcing the fuel from the fuel would produce one spurt of oil through the well 28, through the passageways 29 and 9, nozzle 6, an effort was made to have the exup through the nozzle 6. This device was pert show how, with the nozzle open and the never operated, and we are of opinion that throttle open, the fuel well would become rethere are many reasons why it would not op- filled and how there could be any further acerate.

tion of the diaphragm. The responses were his expenses


convincing that there would be no refilling Howard M. Long, of Philadelphia, Pa., of the well and no further action of the dia- for appellant. phragm without at least closing and again Carl G. Kirsch, of Philadelphia, Pa., for opening the throttle.

appellee. Defendant's counterclaim: Defendant has

Before WOOLLEY and DAVIS, Circuit a counterclaim in which it is charged that

Judges. plaintiff infringes certain claims of defendant's Rayfield patent No. 1,335,389. This counterclaim was not seriously urged upon

WOOLLEY, Circuit Judge. The Schoon. oral argument. We are convinced, upon ex

er Balsa was lying at anchor off Staten Isamination of the record, that there is no in- land waiting for a charter when Wry, her fringement of those claims.

master, was hurt in her service. He was

taken to the United States Marine Hospital [3, 4] We conclude, therefore, that claim 15

at New York where he remained continuousof the Anderson patent No. 1,166,734 is not only invalid, but that it is not infringed; ly for twenty-eight days and from which he that the Goldberg patent No. 1,128,773, as to

was not finally discharged for three months. the claims involved, is invalid; and that the Later he filed a libel against the vessel, chargRayfield patent No. 1,335,389 is not infringed ing her owners with negligence in failing to by the device of the plaintiff.

keep her in a seaworthy condition and prayThe decree of the District Court should be ing damages for his injury and payment of and is affirmed.

for cure and maintenance. The court entered a decree refusing damages, but allowing him $765 to cover the latter claim. Thereupon the vessel took this appeal, charg

ing error in the decree, first, for lack of eviTHE BALSA.

dence to sustain the award, and second, beCUMMINS V. WRY.

cause under the admiralty law the master of

a ship, as distinguished from a seaman, is not (Circuit Court of Appeals, Third Circuit. entitled to recover the costs of his cure and February 11, 1926.)

maintenance. No. 3378.

[1] Of course a seaman cannot recover costs

of cure when, having received attention at 1. Seamen Cil-Seaman may recover only a marine hospital, he has expended nothactual outlay for cure and not for free treat

ing in his cure. But expenses actually inment.

curred for treatment beyond that which was Injured seaman cannot recover costs of cure which he has received at Marine Hospital with given him without cost at such an hospital out charge, though he may recover expenses ac- are recoverable, unless the seaman has retually incurred for treatment beyond that given jected the hospital service when available without cost, unless he has rejected hospital (The Bouker No. 2 [C. C. A. 22] 241 F. 831, service when available.

154 C. C. A. 533; The Santa Barbara (C. C. 2. Shipping Om69—Master's right to libel ves. A. 2d] 263 F. 369), of which there is no

sel for costs of cure and maintenance not de evidence in this record. termined by matters stated. Master's relation to seaman, and his inabil- the trial court computed the sum it allowed,

While the opinion does not show just how ity to libel vessel for his wages, are not controlling on question whether he may libel ves

there is evidence of expenses which when sel for costs of cure and maintenance after measured by the master's wages for the time injury.

embraced within the period of his cure is suf3. Shipping Om69—Master entitled to recover

ficient to sustain the award. cost of cure and maintenance from vessel. [2,3] The important question in this case,

Master, injured in service of vessel, is en- however, is one of law and is whether the titled to recover, in libel against her, cost of his rule which gives a seaman the right to recover cure and maintenance,

his costs of cure and maintenance extends to Appeal from the District Court of the had been an ordinary seaman there is no

the master. If, instead of being master, Wry United States for the Eastern District of doubt, under the law of The Osceola, 23 S. Pennsylvania; Oliver B. Dickinson, Judge.

Ct. 483, 189 U. S. 158, 47 L. Ed. 760, that he Libel by Rupert Wry against the schoon- would be entitled to recover costs of his cure er Balsa; Albert D. Cummins, claimant. and of his maintenance during cure. But the From a decree for libelant, respondent ap- respondent maintains that a master is not a peals. Affirmed.

seaman within the meaning of the rule and

her cargo.

10 F.(2d) 400 that, as intimated in the same case, the mas- and taking one step farther, rendered a like ter is not a fellow-servant of the seaman, but decision in favor of a master. It would seem, being in the high position of commander of ratione rei, there is no difference (except in the ship and representative of the owners the degree) between the position of a master protection which the admiralty law accords and that of a common seaman when it comes a seaman does not extend to him. This, it is to an injury of one or the other as affecting urged, is proved by the rule which precludes the movement of the ship and her preservahim from libelling the ship for his wages. tion to her owners; and no difference in the We think the relation of the master to the duty which in humanity (and self-interest) other servants of the ship has no bearing on the owners owe one or the other. Though the question; the question concerns the rela- in different stations, each is a mariner, runtion of the master to the ship. Nor do we ning the same risks, encountering the same think his inability to libel the ship for his dangers, engaged in the common adventure wages bears on the question of his ability to of sailing and safe-guarding the ship and libel the ship for his costs of cure and main

In this view, “master, mates, tenance. The difference between the two is sailors, surveyors, carpenters are mariners.” clear. The master is the commander of the Benedict's Admiralty (4th Ed.) 189. Basing ship-lord of his little world. He is master our judgment on the reasoning of the opinin every sense of the word, controlling not ion in The George, to which we refer for a only her movement and her cargo but her greater exposition of the subject, we hold earnings, which he may apply to the dis- that under general admiralty law the libelcharge of the ship's indebtedness to him for lant in the case at bar has the right as mashis wages. Yet, notwithstanding his absolute ter of the vessel to recover his costs for cure control of the ship, her cargo and her earn

and maintenance arising from a hurt inflicted ings, he cannot resort to any of them for his in her service. cure and maintenance unless in law the ship

The decree below is affirmed. owes him the duty to pay such costs when in

test. aciced curred in consequence of an injury sustained in her service. That duty is prescribed,

a equally in favor of master and seaman, by

St. 486.

MURRAY v. the English Merchants' Ship Act, 17 & 18 Victoria, chapter 104, section 228, subdivi

FAHY V. SAME. sion 1. But there is no statutory law of the

(Circuit Court of Appeals, Seventh Circuit. United States to this effect and if there be

December 9, 1925. Rehearing Denied such a rule it must be found within the gen

January 13, 1926.) eral maritime law as pronounced by the

Nos. 3510, 3511. courts. The respondents say there is none. Concededly there is a dearth of judicial ex

1. Criminal law 878(4)–Verdict of guilty of

robbery and of robbery with dangerous weappression on the subject but we think there is

ons is not inconsistent and repugnant. enough in authority, and certainly in reason,

Verdict of guilty of robbery of person in to sustain the award.

custody of mail and of robbery with dangerous No decision directly on the point render- weapons is not inconsistent and repugnant. ed by an appellate court of this country has 2. Criminal law e-741(1), 742(1)-Credibility been brought to our attention, though in The of evidence and weight to be given thereto George, Fed. Cas. No. 5,329, Mr. Justice is for jury alone. Story, sitting in a circuit court, discussed the Credibility of evidence and weight to be

given thereto is for jury alone. question. In that case the court held that a mate, acting as master, might recover his 3. Criminal law Cm423(1)-Acts or declara. costs of cure and maintenance. The decision

tions of conspirators in furtherance of con

spiracy are admissible against co-conspira. turned on the retention of his office of mate,

tors. to whom, as such, concededly, the ship owed

Acts or declarations of conspirators in furthe duty of cure and maintenance. But the therance of conspiracy, while joint understandlearned judge discussed at length a like duty

ing is pending, are admissible against co-con

spirators. which a ship in like circumstances would owe her master. Though dicta, his reason- 4. Criminal law m423(2)-Evidence of coning, in our judgment, has the force of law.

versations between conspirators in accused's

absence as to statements by one of accused Of the same view was the judge in the case

held competent, and not hearsay. of Van Lier v. Dord, Fed. Cas. No. 16,862,

Evidence of conversations between conspirwho, relying on the decision in The George, ators in accused's absence as to statements by

271 US 13 70d Ed 1144


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one of accused, made as inducement to go on 10201). All counts of the indictment chargwith conspiracy held competent against accused, ed all nine defendants as principals. The and not hearsay.

first five counts charged them with robbing a 5. Criminal law e419, 420(2)-Proof that person having custody of the mails, and in

certain statement was made is not “hearsay" of that fact, but is hearsay of truth of state. effecting such robbery putting the life of the ment.

custodian in jeopardy by the use of dangerProof that certain statement was made is ous weapons. Counts 6, 7, 8, 9, and 10 chargpot "hearsay" of that fact, but is hearsay of ed them with robbing the custodian of the truth of statement.

mails, and count 11 with conspiracy to com6. Criminal law em 423(9)-Acts and declara. mit the several crimes set out in counts 1 to

tions of conspirators after robbery held ad- 10, inclusive. The sis actual perpetrators of missible.

the robbery pleaded guilty, and three of them Where conspiracy was to rob mail train and to conceal fruits of robbery, conspiracy did became witnesses for the government. One not end after robbery, while fruits were still of the defendants was acquitted, and the concealed and possessed, and subsequent acts plaintiffs in error, Murray and Fahy, were and declarations of conspirators in furtherance convicted on all counts, and sentenced to 25 of conspiracy were admissible.

years in the penitentiary. They sued out 7. Conspiracy 4-Accused, participating in separate writs of error.

conspiracy to rob mail train, though not present at robbery, could be convicted of rob [1,2] Murray assigned 198 alleged errors, bery with deadly weapons.

covering nearly 100 pages of the printed recAccused, participating in conspiracy to rob ord, and Fahy adopted Murray's assignments mail train, in violation of Criminal Code, $$ 37, as his. In view of the number and volume of 197 (Comp. St. $$ 10201, 10367), though not Murray's assignments, this short cut of Fahy present at actual robbery, could be convicted of is to be commended. Only 13 of all this mulrobbery with deadly weapons, when weapons were used by actual robbers.

titude of assignments are mentioned in the 8. Wito sses w337(4)—Commission of other briefs, and some of these are frivolous, as, for

offenses, brought out on cross-examination of example, No. 4, that a verdict finding plainaccused, testifying in their own behalf, held tiffs in error guilty of simple robbery and competent against them.

of robbery with dangerous weapons is inconAccused, who took stand in their own be- sistent and repugnant. Of course the more half, were subject to same tests as other witnesses, and commission of other offenses, serious crime includes the simpler one. Evbrought out on cross-examination, was ery person who robs with a dangerous weappetent evidence against them on weight to be on robs nevertheless. Another example is given their testimony, and instructions to disre. No. 5, that there is no evidence whatever to gard were properly denied.

sustain the verdict against Fahy. There is In Error to the District Court of the abundance of evidence in the record to sus United States for the Eastern Division of the tain the conviction of both plaintiffs in error, Northern District of Illinois.

if the jury believed it. The credibility of it James Murray and William J. Fahy were

and the weight of it were for the jury alone convicted of robbing a person having custody to determine. of the mails and putting the life of the cus

[3] The assignments of error chiefly relied todian in jeopardy by use of dangerous weap- upon, except those relating to the refusal of ons, and of conspiring to commit such crimes, the court to give requests for instructions in violation of Criminal Code, $ $ 37, 197, and

Nos. 2 and 6, involve an erroneous view of they separately bring error. Affirmed. the law of conspiracy, and of the rules of

Benedict J. Short, of Chicago, Ill., for evidence applicable to a crime committed by plaintiff in error Murray.

several persons and charged against them Lee O'Neill Brown, of Ottawa, II., for jointly. The joint enterprise charged in the

Ill plaintiff in error Fahy.

indictment and shown by the evidence had Edwin A. Olson, U. S. Atty., and John

for its object the robbery of the mails at a Elliott Byrne, Asst. U. S. Atty., both of Chi

time and under circumstances to be determin

ed upon. It was a general plan to rob mails Before ALSCHULER, EVANS, and An- going out of Chicago, when the opportunity

was favorable and when the promise of reDERSON, Circuit Judges.

ward was sufficient. The evidence shows that ANDERSON, Circuit Judge. The plain- the defendants in this case had no moderate tiffs in error were indicted, with seven oth- appetite for loot. A possible haul of $100,ers, for the violation of sections 197 and 37 000 was scorned by them. They sought to of the Criminal Code (Comp. St. $8 10367, and actually did steal many times that

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cago, Ill.

10 F.(20) 409 amount The evidence discloses, not several to give it lies in the claim that it is "a corjoint enterprises and conspiracies to rob par- rect statement of the limitations of the hearticular shipments of mail, but one general say rule in conspiracy cases," and that "beplan and design to rob the mails at such time cause of the remote hearsay adduced against and place as circumstances might warrant. Murray and Fahy this request was imporWhile the plan for a time contemplated a tant to their defense.” As already stated, robbery of trucks passing through the streets the remote hearsay was not hearsay at all. of Chicago, at another time the robbery of a It consisted in statements made by one concertain mail supposed to carry $100,000 to spirator to his co-conspirators as inducement Indianapolis, and finally the robbery which and encouragement to go on with the contemwas actually effected, it was one continuous plated crime. Such statements were theregeneral plan and conspiracy to effectuate the fore in furtherance of the conspiracy, and robbery which was finally committed. The the fact that they were the quoted statements crime was so charged and evidence was intro- of others does not make them hearsay. Proof duced from which the jury might find the ex

of the fact that a certain statement was made istence of such a conspiracy and that all the is not hearsay of that fact. It is hearsay of defendants were members of it. When once the truth of the statement. Glasscock said such a conspiracy, such a joint understand- these things to his co-conspirators as induceing, has been established and is pending, any

ment for them to go on with the enterprise, act done or declaration made by any party and it does not become any less inducement to the understanding, in furtherance of the because it consists in stating what some one object of it, is admissible in evidence. Test- else said. A promise of assistance by anothed by this rule, all the criticisms of the rul- er person would be the statement of that other ings of the court upon what is called hearsay person, and when told to co-conspirators it evidence disappear.

would be inducement to go forward with the [4] Some of the testimony of Glasscock, one

crime. of the accomplices, is much complained of in [6] Nor are the acts and declarations of this respect and illustrates the contentions Murray and Fahy after the robbery to be exmade. He was allowed to testify that at cluded on the ground that they occurred aftmeetings wih other conspirators, in the ab- er the conspiracy had come to an end. sence of Murray and Fahy, he told his co- Among the offenses which the indictment conspirators that Murray had told him that charged as the objects of the conspiracy were he knew an inspector (Fahy) who would fur- the concealing and the possessing of the nish information as to shipments of valua. fruits of the robbery, and these crimes were ble mail, and further that Murray had said going on at the time the acts were done and that Fahy had said that he would furnish this the declarations made. The conspiracy had information. This evidence as to what Mur- not yet come to an end. ray said was competent against him; there- [?] It is strongly urged that as plaintiffs in fore the court could not exclude it, as request

error were not present at the actual robbery, ed. The most that could have been done was

and were at most shown to be accessories beto ask the court to limit its effect, and this fore the fact, they were not shown to have was not done. But the evidence was compe- intended the use of dangerous weapons. This tent as a declaration in furtherance of the contention is disposed of by the case of Preeconspiracy. The witness was detailing con- man v. United States, 244 F. 1, at pages 17, versations he had with certain of his co-con- 18, 156 C. C. A. 429, 446, decided by this spirators while making the preliminary plans court. That was a prosecution for the use for the robbery of the mails, and the state- of the mails in a scheme to defraud and a ment that plaintiff in error Murray had told conspiracy to commit such crime, and it was the witness that he knew an inspector who there held that, as the carrying out of the could, and who said he would, furnish the fraudulent scheme could not have been sucnecessary information, was directly in fur- cessfully accomplished without the use of the therance of the conspiracy. It was plainly mails, "all who participated in the scheme an inducement held out to the co-conspira- contemplated the use of the mails in the extors to go on with the enterprise. It was not ecution of their common design.” So here a hearsay in a legal sense at all.

mail train could not have been held up and [5] Complaint of the court's refusal to give the guardians of the mail robbed without the request No. 4 is based upon this same mis- use of deadly and dangerous weapons. Such taken view of the law of evidence. The assert- things are not done barehanded. ed harm done plaintiffs in error by refusal [8] The refusal to give requested instruc

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