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tions 2 and 6 is alleged as error; 2 and 6 in 3. Courts Ow371(4)-When cause of action for substance requested the court to tell the jury

death is asserted in admiralty court, it is subthat it was immaterial to the issues in the

ject to defenses available under jurisprudence

of state whose statute gives right of action. case how many wrongful or illegal acts were

When cause of action for death is asserted perpetrated by defendants, except in so far in admiralty court, it is subject to same de. as such acts were indicative of the conspir- fenses as are available under jurisprudence of

action. acy charged; that they were not concerned

state whose statute gives right with whether or not any defendant was engaged in the illegal transportation of intoxi- United States for the Eastern District of

Appeal from the District Court of the cating liquor; and that, if they believed from the evidence that he was so engaged, they Texas; W. Lee Estes, Judge. should not permit such fact to influence their

Suit by Nellie Truelson and others against verdict. Plaintiffs in error both availed the Whitney & Bodden Shipping Company, themselves of their privilege and became wit- Inc. Decree for defendant, and plaintiffs nesses in their own behalf. They were sub- appeal. Affirmed. ject to the same tests as other witnesses, and, C. W. Howth and M. G. Adams, both of so viewed, it was not the law that their Beaumont, Tex. (Lamar Hart, of Beaumont, wrongful and illegal acts, other than the of- Tex., on the brief), for appellants. fenses charged, were immaterial and should F. D. Minor, of Beaumont, Tex., Palmer not influence the verdict. Such facts were Pillans and Alexis T. Gresham, both of Moentirely competent to be considered upon the bile, Ala., and Samuel C. Lipscomb, of Beauweight to be given to their testimony, and mont, Tex., for appellee. requests to direct the jury to disregard it al

Before WALKER, BRYAN, and FOStogether were properly denied.

TER, Circuit Judges. The contention that the venue was not proved is without merit. Duree v. United

WALKER, Circuit Judge. This is an

. States (C. C. A.) 297 F. 70; Goldstein v. United States, 256 F. 813, 168 C. C. A. 159. appeal from a decree rejecting a claim of the There is no substantial error in the rec

appellants, the widow and minor daughter ord, and the judgment is affirmed.

of J. H. Truelson, that the brigantine Geneva, by reason of negligence alleged, was liable in damages for the latter's death; the appellants alleging that deceased's death oc

curred without fault or negligence on his 1138,46 lupt. 474 . part. Those allegations were put in issue. TRUELSON et al. v. WHITNEY & BODDEN [1] The circumstances of Truelson's death SHIPPING CO., Inc. *

are indicated by the following statement: (Circuit Court of Appeals, Fifth Circuit, De- launch in the Port Arthur canal and slips

The deceased and one Nelson operated a cember 28, 1925. Rehearing Denied January 19, 1926.)

thereof in the business of selling cold drinks

and tobacco to seamen on vessels there No. 4567.

docked. Several days prior to August 31, 1. Shipping Om 86(2)—Evidence held to estab. 1923, the Geneva arrived at Port Arthur

lish contributory negligence barring recov. from a foreign port, and, for the purpose ery for death of one knocked from launch of taking on a cargo of timber, was docked by cables across slip.

in a slip which was dredged at the expense In action for death of one knocked from of a railroad company, the docks on each launch by cables stretched across slip, evidence side of that slip being owned by that comheld to establish contributory negligence barring recovery under Vernon's Sayles’ Ann. Civ. pany, the slip being about 250 feet wide St. Tex. 1914, arts. 4698, 4699, and article 4694 where the Geneva was docked. The health as amended by Acts 1921, c. 109, $ 1 (Vernon's officers in charge required the Geneva, the Ann. Civ. St. Supp. Tex. 1922, art. 4694).

port side of which was next to the dock, to 2. Death Om23—Contributory negligence com- be "breasted off” the dock the distance of plete defense to action under Texas statute. about 4 feet in order to keep infected rats

Contributory negligence is a complete de- from reaching shore. Permission was obfense to an action for damages for wrongful tained from the harbor master to effect this death under Vernon's Sayles' Ann. Civ. St. Tex. result by stretching hawsers or cables from 1914, arts. 4698, 4639, and article 4694 as amended by Acts 1921, c. 109, § 1 (Vernon's the vessel to each side of the slip. Two caAnn. Civ. St. Supp. Tex. 1922, art. 4691). bles on the starboard side extended across

*Certlorari denied 46 S. Ct. 474, 70 L. Ed.

ccrtidenish

w tlet, 70TEd.

10 F.(20) 412 the slip and were fastened to ring bolts on that by a preponderance of the evidence it the wharf on the opposite side of the slip. was shown that the collision with the cable Those cables when stretched were, respec- and the deceased's death would not have octively, about 12 and about 14 or 15 feet from curred but for the negligence of himself the water where they left the vessel and and Nelson in failing to keep the launch near about 6 feet from the water on the opposite enough to the Geneva to pass under the cables side of the slip. They sagged somewhat be- with safety, there being ample room to do so. cause it was not practicable to pull them It cannot fairly be doubted that the peril taut enough to make them straight. It was would have been avoided if the deceased had customary for vessels docked in that slip to been exercising the care called for by atbe "breasted off” in the way adopted by the tending circumstances known to him. Geneva. Each day while the Geneva was in [2,3] In view of the purposes for which the the slip Nelson and Truelson in their launch slip was customarily used, of deceased's faseveral times went in and out of the slip, miliarity with conditions existing therein, and going under lines stretched across it from the absence of any reason for those in charge the Geneva and other vessels. They did so of the Geneva to expect the launch to be several times on August 31. They went out operated in the slip at night, it is questionof the slip without mishap at about 7 o'clock able whether the Geneva, by having cables in the evening of that day. Some time la- stretched across the slip as they were, was ter that evening when "it was about dusk," chargeable with negligence with respect to while the launch was going into the slip, the the launch or the operators of it. The Echo top of it, which was about 6 feet above the (D. C.) 19 F. 453; The J. G. Lindauer (D. water, came in contact with the Genera's C.) 158 F. 449. But the appellants were first cable in the direction from which the not entitled to recover even if the Geneva launch was coming, whereupon the deceased was not free from fault in doing so. The went forward towards that cable and, either claim asserted was based on the Texas statwhen attempting to release it or when going ute giving a right of action for wrongfully towards it after it had been released, was causing the death of a person. Vernon's struck by it and knocked from the launch and Sayles' Ann. Civ. St. Tex. 1914, arts. 4698, drowned. Ordinarily the launch was operat- 4699, and article 4694 as amended by Acts ed only in the daytime. It had no lights on 1921, c. 109, § 1 (Vernon's Ann. Civ. St. it. The night of the drowning was the only Supp. Tex. 1922, art. 4694). Contributory time it was operated after 5 o'clock in the negligence of the deceased is a complete deafternoon. It was not practicable to have fense to such an action. Barnes v. Honey lights on the stretched cables at night, as Grove Natatorium Co. (Tex. Civ. App.) 228 there were no electric lights in the locality, S. W. 354. When such a cause of action is and, because of oil on the water in the slip, asserted in an admiralty court, it is subject the use of oil burning lamps or lanterns on to the same defenses which are open to a dethe cables was unsafe and not permitted. fendant under the jurisprudence of the state The evidence was conflicting as to whether at whose statute gives the right of action. the time deceased came to his death the cables Quinette v. Bisso, 136 F. 825, 69 C. C. A. were or were not in the same condition in 503, 5 L. R. A. (N. S.) 303; O'Brien v. which they were when the launch went un- Luckenbach S. S. Co. (C. C. A.) 293 F. der them at about 7 o'clock the same eve- 170. We conclude that the appellants were ning. To say the least, the evidence did not not entitled to the relief sought because the convincingly show that the cable with which evidence adduced showed that the deceased's the top of the launch collided was then sub- failure, under conditions known to him, to stantially nearer the water than it was when exercise ordinary care for his own safety, the launch on its next preceding trip out of proximately contributed to his death. the slip passed the Geneva safely. We think The decree is affirmed.

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ers.

PICKETT V. F. B. STEARNS CO.

spective force feed oiling systems in multiSAME v. WILLYS-OVERLAND, Inc., et al. cylindered automobile engines. It is not to

be denied that, if a sufficiently broad con(Circuit Court of Appeals, Sixth Circuit.

struction and sufficiently extensive range of February 2, 1926.)

equivalents were to be applied, the language No. 4456, 4457.

of the claims might be read upon the defend1. Patents w328–824,809, claims 1, 2, and 4, ants' devices; but the controlling question is for lubricator, held not infringed.

whether, even with a reasonably broad conPickett patent, 824.809, claims 1, 2, and 4, struction, the patent should not be limited for lubricator, held not infringed.

to the same general type of device and gen2. Patents Om 165-Patentee is entitled to

eral theory of operation shown in the specibenefit of any novelty inherent in mechanism fication and drawings. We think that it disclosed.

should be, and will briefly state the reasons. Though not specifically claimed, patentee is

The motorcycle engine, for connection entitled to benefit of any novelty which is inherent function of mechanism which be dis

with which the patentee devised his “lubricacloses.

tor,” provided oil for the crank shaft bear

ings and the cylinder walls by the then well Appeals from the District Court of the known "splash feed"; that is, the immediate United States for the Northern District of supply of oil was carried in the bottom of the Ohio; D. C. Westenhaver, Judge.

crank case—the crank case pool—and was on Patent infringement suits by Lester D.

such a level therein that, as the flywheel rePickett against the F. B. Stearns Company volved, it dipped into the oil and filled the and against Willys-Overland, Inc., and oth- crank case and connecting open cylinder Decrees for defendants, and plaintiff

end with an oil spray. As the oil was graduappeals. Affirmed.

ally consumed, the oil level would lower, and, See, also, 2 F.(20) 600.

when it dropped below the flywheel edge,

lubrication by the splash feed would stop. George E. Kirk, of Toledo, Ohio, for ap- The customary practice was to replenish the pellant.

supply from time to time by putting more in Wilber Owen, of Toledo, Ohio (Albert by hand, thus raising the level. Pickett's Lynn Lawrence and Tolles, Hogsett, Ginn "lubricator consisted in adding to this com& Morley, all of Cleveland, Ohio, and Owen

mon construction an elevated external oil & Owen, of Toledo, Ohio, on the brief), for reservoir, provided with a feed tube which appellees.

led down into the crank chamber. At the Before DENISON, MOORMAN, and outlet of the reservoir to this tube was a KNAPPEN, Circuit Judges.

valve, which would permit either more or less

oil to flow down the tube under the combined DENISON, Circuit Judge. Infringement influence of gravity and suction. This valve suits, based on claims 1, 2, and 4 of patent was opened and closed by a connection to 824,809, issued July 3, 1906, to the plaintiff the spark lever. As the spark was advanced, for a "lubricator." The appellant here was

in connection with and in aid of rapidity of the plaintiff below; the bills were dismissed explosions and greater speed, this valve for lack of infringement.

would open and supply more oil per second, [1] Claim 2 may be taken as the best defi- and (so far as there was effective suction) nition of what is now claimed to be the pat- more oil per piston stroke, and as the spark entable novelty. It reads:

lever was retarded the valve would be ac“The combination with an internal com- cordingly closed. It was the patentee's genbustion engine, of a speed-regulating means

eral theory that more oil was consumed at for the engine, and a lubricator connected high speeds, and that by this device he would to the speed-regulating means and adjustable automatically maintain the proper oil level therewith, to increase the quantity of lubri- in the crank case. cant fed at each stroke of the piston as the The defendants do not use the splash speed of the engine increases, and to reduce feed system to supply oil to the cylinder inthe quantity of lubricant fed at each stroke teriors, but they do have a crank case pool, as the speed of the engine decreases." which it is necessary to maintain at a mini

The patent shows the lubricator as applied mum level; they have no device for automatto a motorcycle having a single cylinder ex- ically supplying more oil thereto from the plosive engine. The alleged infringement outside. For this purpose they use the old consists in the use by defendants of their re- method of occasional replenishment by hand.

10 F.(20) 414 They supply the crank shaft (as well as oth- external oil cup, and in the functioning of er) bearings by a force feed system, consist the relief valve the equivalent of plaintiff's

, ing of a pump, a supply tube leading there- automatically controlled reservoir exit valve; to from the crank case pool, and a system of he also says that the "speed-regulating force feed tubing leading from the pump to means” of his claims may as well be the the various bearings needing oil. The sur- gas throttle as the spark lever. There is no plus oil not consumed in the crank bearings occasion to consider this last-claimed equivais thrown into spray, filling the open cylin- lency; for we think the "lubricator" of the der ends, and condenses and runs down again patent claims fairly refers to a device for into the crank case pool. At one point in supplying to the crank case pool new and this circuit, and immediately in advance of additional oil, and does not fairly extend to the pump, there is a relief valve, to be or cover a device for regulating the speed or mechanically opened. When opened more or volume of an interior continuous circulation less, a corresponding amount of oil will of the same oil. We conclude that to giye escape from the tube pressure system, as the claims such a broad construction would from a by-pass or spillway, and run down be to yield to the ambiguous effect of some into an immediately surrounding reservoir, far-reaching, but to that extent inappropriwhich may be called the relief valve pool, ate, words which were used to identify the whence it will overflow, and by gravity run invention, and to do so at the expense of down again into the crank case pool. As its real spirit and substance; but the ingethe speed of the engine is increased by open- nuity and persistence with which appellant ing the throttle, and this relief valve is, urges his position merit some further discusthrough suitable connections, corresponding- sion. ly closed, the pressure beyond the pump Of course, it had always been true, with thereby increases above what it would be if

splash feed or force feed, that the amount the valve remained open. Through the in- of oil fed per second to the lubricated parts creased speed of the pump alone, the amount would increase, somewhat or quite proporof oil fed to the bearings per second would tionately to the speed;1 but the amount correspondingly increase; whether through per stroke would remain relatively constant. the valve action the amount per stroke in- It perhaps was true that Pickett, for his creases is controverted. It does not seem motorcycle, on account of excessive temperathat the action of the relief valve can have ture and leakage at high speeds, needed therematerial effect on the oil level in the crank

for more oil per stroke. This seems not subcase pool; if more oil escaped through the stantially true as to defendants' engines; inrelief valve, there would be less to go through deed, it is the slow moving piston, working the bearings, and vice versa; in either case, against resistance, which needs more oil per all the oil which passed through the pump stroke. If, however, we should assume that would come back to the crank case pool, one plaintiff invented this step, an out-of-proway or the other.

portion increase in oil feed—that is, on the The finding of noninfringement made by higher speed to feed more oil per stroke the court below was based upon the broad and had an appropriate claim, infringement ground that the actual process of lubrica- would not be clear, but only shadowy. The tion of moving parts by the defendants is theory of defendants must be that, since the begun at the crank case pool, while the pat

pump should have a large margin of safety, ented device relates solely to means for au- its full capacity gives too much oil for low tomatically supplying the oil from the out- speed (unburdened). Accordingly, for this side to this pool; in other words, "defend

normal operation, a by-pass or spillway is ants begin where plaintiff leaves off.” Ap- provided, and only (say) one-quarter of the pellant points out, as he thinks, the defect

oil pumped goes past the spillway to the in this view, by saying that the purpose of his invention is met in material part by sup

bearings. Then let the speed be doubled.

Twice as much oil per second, though the plying the oil spray to the cylinder interiors,

same amount per stroke, will be sucked up the manner of lubricating the bearings being

by the pump. Seemingly twice as much relatively secondary, and that it is not im

would go to the bearings, but it does not. portant whether the reservoir from which

Perhaps cause of disproportionate back the lubricant supply is maintained is inside

pressure at the small bearing ports and at or outside of the engine. He then finds in defendants' crank case pool, or relief valve

1 By speed we mean R. P. M., or the piston (sleeve) pool, or in both, the equivalent of plaintiff's strokes per second, not speed over the ground.

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the relatively large relief valve opening, the its tendency to raise the pool level less diamount of oil per stroke at the bearings is rect. not maintained. In order to maintain it, The decree must be affirmed. the relief valve opening must be lessened.

It is clear that the bearings thus get at higher speed more oil per stroke than they would get, except for the closing of this re

SAWYER v. UNITED STATES. lief valve; it is not clear that they get more absolutely per stroke than they had at the (Circuit Court of Appeals, Second Circuit. lower speed. There is no apparent reason

January 4, 1926.) for thinking that they do. Indeed, if the

No. 22. relief valve were wholly closed, the oil feed

1. United States 40—"Regulation" of execu. would be exactly proportionate to the speed,

tive department, authorized by act of Conand give precisely the same amount per gress, has force of law, stroke at higher speed as at lower (unless "Regulation" of executive department, aufor reasons not stated in the record). The thorized by an act of Congress, gives depart

ment power to adopt general rules relating to tests are not convincing. Some of them show

the subject on which the department acts, made a slight disproportion; others do not. The by the head of the department, thereby giving average of a large number of them is not to regulation adopted the force of law. helpful to plaintiffs' theory. Tests involv- 2. United States 40—Authority to make ing such delicate distinctions may be affected regulations to carry out legislative act conin slight, but material, degree by so many

fers no authority to change the act. variant conditions that, when they do not

Authority to make rules and regulations carry far over the line, they are not convinc- legislative act can confer no authority to change

necessary for carrying out the purposes of a ing.

the act itself, and thereby deprive one of a [2] Appellant then says that, even if the oil right given by the act. feed increase is ultimately proportionate to 3. Constitutional law Ow60—Congress cannot the speed increase, yet that a new result is delegate legislative power. reached, common to both plaintiff and de- Congress cannot delegate legislative power fendants, by obtaining an out of proportion 4. Constitutional law Oma 62—Authority to oil increase with each stroke while the speed make administrative rules is not delegation is increasing--during the acceleration peri- of legislative power. od. We are not persuaded that this ingenious

Authority to make administrative rules is

not a delegation of legislative power. theory is within the fair contemplation of the specification or claims. It is not men- 5. Army and navy Eww23—“Retainer pay" is

compensation to enlisted men not rendering tioned in the specification nor in the Patent

active service; "allowance;" "gratuity." Office proceedings, as distinguished from the

As Act establishing the Naval Reserve permanent per stroke increase; true, though Force (Comp. St. § 290042a et seq.) does not it is not specifically claimed, the patentee use the words "allowances” or “gratuities” as should have the benefit of any novelty which synonyinous with “retainer pay," "retainer is an inherent function of the mechanism pay” is the compensation paid to enlisted men

retained in the service, but not rendering active which he shows (Goshen Co. v. Bissell Co., service, although liable to be called into active 72 F. 67, 74, 75, 19 C. C. A. 13); but we service, and when called they no longer receive think this now claimed function is not pres

"retainer pay,” but pay; term “allowance" ent in the patented apparatus in any substan- meaning a gift or a “gratuity.” tial degree. If the spark lever were gradual- and Phrases, First and Second Series, Allow

[Ed. Note.-For other definitions, see Words ly advanced in connection with the increasing ance; Gratuity.] speed, there would be no substantial interval

6. Army and navy Om51 1/2, New, vol. 12A Key. between the oil acceleration and the speed

No. Series—Regulations of Director of Bu. acceleration; while if the spark lever were reau of War Risk Insurance held to have jumped forward, and an interval thus pro

force of law. duced, we do not see that any increase in the Under Act Oct. 6, 1917 (Comp. St. 1918, $S crank pool level during this very brief peri- 514a-514vv), and Act Aug. 29, 1916 (Comp. St.

514k-514vv), Act Sept. 2, 1914 (Comp. St. $$ od could accomplish anything. Hence we $ 290012a et seq.), Director of Bureau of War feel that this theory is not persuasive. Risk Insurance was empowered to make rules

We do not overlook that Pickett dropped and regulations necessary to carry out its purhis new oil upon the top of the flywheel, No. 40, and regulation known as "Form 2303,"

poses, regulation of July 25, 1919, regulation and perhaps at once increased the body of

as to payments of premiums on insurance, held spray filling the crank case. This only made validly adopted, and to have force of law.

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