33 F.(2d) 217 It does not appear that the other barges in the tow belonged to him, or that there could be any question in regard to them of joint operation with the owner of the tug or joint contracts of carriage. I believe, therefore, that there was no joint contract of carriage, nor joint operation, and that therefore In re O'Donnell (C. C. A.) 26 F. (2d) 334, does not apply. Decree is directed for the libelant against the steamer J. B. Austin, Jr., and William Hallenbeck. UNITED STATES v. ONE CHEVROLET SEDAN. District Court, S. D. Texas, at Brownsville. June 15, 1929. No. 621. 1. Customs duties 133(5) -Libel in proceedings for forfeiture of automobile transporting Jiquor unlawfully imported should allege and evidence establish existence of facts authorizing forfeiture (19 USCA §§ 482, 483). In proceedings under Rev. St. §§ 3061, 3062 (19 USCA §§ 482, 483), to forfeit automobile used for transporting foreign distilled liquor unlawfully imported, libel sould allege and evidence establish existence of those facts made by statute a condition to forfeiture. 2. Customs duties 130(4)-Government held not entitled to forfeiture of automobile for transportation of liquors unlawfully imported because automobile was piloting other cars containing liquor (19 USCA §§ 482, 483). Government held not entitled in proceeding under Rev. St. §§ 3061, 3062 (19 USCA §§ 482, 483), to forfeiture of an automobile as used in transportation of foreign distilled liquor unlawfully imported, where automobile was being driven by one who agreed to act as pilot for persons engaged in smuggling liquors in other cars, but none of such liquors were in automo bile involved. Proceeding by United States under Rev. St. §§ 3061, 3062 (19 USCA §§ 482, 483), against one Chevrolet sedan. Decree entered dismissing libel and delivering property to claimant. Douglas W. McGregor, Asst. Dist. Atty., of Houston, Tex., for the United States. West & Hightower, of Brownsville, Tex., for claimant. HUTCHESON, District Judge. This is a proceeding brought under sections 3061, 3062, Revised Statutes, U. S. C. title 19, §§ 482, 483 (19 USCA §§ 482, 483). The libel alleges that the vehicle was seized "while said automobile was being used in the conveying and transporting of cer tain foreign distilled liquor which had lately been unlawfully imported into the United States contrary to law." Claimant asserts that the libel is insufficient because it does not charge that there was in the vehicle merchandise subject to duty, or which had been introduced contrary to law, and it alleges that as a matter of fact there was not any such merchandise therein. Both of these points are well taken. [1,2] The libel does not plead, nor do the facts establish, any conditions which would subject the vehicle to forfeiture. This being a proceeding for forfeiture, the libel should allege, and the evidence establish, the existence of those facts made by the statute a condition of such forfeiture. These facts are set out in the two sections above referred to as follows: "Sec. 482. Search of Vehicles and Persons. Any of the officers or persons authorized to board or search vessels may stop, search, and examine, any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law." "Sec. 483. Forfeitures. Any such vehicle and beast, or either, together with teams or other motive power used in conveying, drawing, or propelling such vehicle or merchandise, and all other appurtenances, including trunks, envelopes, covers, and all means or concealment and all the equipage, trappings and other appurtenances of such beast, team, or vehicle, shall be subject to seizure and forfeiture." The facts at the trial developed that the car in question was being driven by one who had agreed to act as pilot or guide for persons engaged in smuggling in other cars liquors unlawfully introduced into the United States, but none of the liquors were in the car in question. Upon these facts the government contends that, within the language and the intent of the statute, the car in question became forfeit; claimant, that it did not. Libelant cites United States v. One Dodge Sedan (D. C.) 28 F.(2d) 44, in which the libel was brought under Rev. St. § 3450 (26 USCA § 1181), against four automobiles, three of which were loaded with smuggled whisky. The one in question in that suit was the armed convoy or pilot guide of the others, itself containing no liquors. It was there held that section 3450, providing that all conveyances used "in the removal or for the deposit or concealment" of such articles shall be forfeited, was effec- 3. Master and servant 417(7)-Finding of tive to bring about a forfeiture in that deputy commissioner is final (Longshoremen's and Harbor Workers' Compensation Act [33 USCA §§ 901-950]). case. Whether that decision be correct or not as to the section under discussion, it is not authority for the effect which the government seeks to give to the statute in question here. Here by the express terms of the first statute, section 482, the officers are authorized to stop, search, and examine vehicles and persons in which or whom they suspect there is merchandise subject to duty, and it is such vehicles, and such only, that the following section 483 declares subject to forfeiture. On or in the vehicle in question there was no smuggled merchandise, and it follows that it has not become subject to forfeiture. Let a decree be entered dismissing the libel and delivering the property to the lienor claimant. Since, however, there was probable cause for the seizure, in view of the fact that the car was part of the convoy of vehicles some of which were loaded, a certificate of probable cause will be awarded the government, and the costs of the seizure and storage will be taxed against the claimant. JOYCE v. UNITED STATES DEPUTY COMMISSIONER FOR FIRST COMPENSA TION DIST. (EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited, Intervener). District Court, D. Maine. April 2, 1929. No. 911. 1. Master and servant 417 (5) -Court cannot interfere unless compensation award is clearly not in accordance with law (Longshoremen's and Harbor Workers' Compensation Act [33 USCA $$ 901-950]). Courts are not authorized to interfere with award made under Longshoremen's and Harbor Workers' Compensation Act (33 USCA $$ 901950), unless such award is clearly not in accordance with law. 2. Master and servant 405(6) - Evidence held to support compensation award where injured man and maimed hand were examined by deputy commissioner (Longshoremen's and Harbor Workers' Compensation Act [33 USCA §§ 901-950]). It cannot be said that there was no evidence to support award under Longshoremen's and Harbor Workers' Compensation Act (33 USCA §§ 901-950), where injured man and maimed hand were examined by deputy commissioner, who evidently considered that doctor's testimony should be modified by facts as observed by him. In proceeding under Longshoremen's and Harbor Workers' Compensation Act (33 USCA §§ 901-950), finding of deputy commissioner is final, and it is only when it is shown that he has not proceeded according to law that court has any jurisdiction. 4. Master and servant 405(1)-Deputy commissioner may ignore doctors' opinions and rely on other evidence and his own observations in making award (Longshoremen's and Harbor Workers' Compensation Act [33 USCA §§ 901-950]). In proceeding under Longshoremen's and Harbor Workers' Compensation Act (33 USCA §§ 901-950), deputy commissioner had right to ignore opinion of doctors and to rely on other evidence and his own observations and judgment in making award. In Equity. Suit by Patrick J. Joyce against the United States Deputy Commissioner for the First Compensation District, in which the Employers' Liability Assurance Corporation, Limited, intervened. Bill dismissed. Edward J. Harrigan, of Portland, Me., for plaintiff. William B. Mahoney, of Portland, Me., for intervener. PETERS, District Judge. This is a proceeding under the Longshoremen's and Harbor Workers' Compensation Act (33 USCA §§ 901-950), asking the intervention of this court in suspending or modifying an award of a deputy commissioner on the ground that it is not in accordance with law. In support of that allegation the plaintiff avers that the deputy commissioner went outside the evidence, ignored it, and made a finding inconsistent with it. The interveners defending have filed an answer with a demurrer. As some evidence has been introduced, including the record of the proceedings before the deputy commissioner, it may be simpler to decide the case on the merits. [1] It is perfectly clear that the Congress in passing this act intended to make an administrative provision for the benefit of a certain class of workers to be used and construed with the utmost liberality toward them. The plaintiff complains that the deputy commissioner was not governed by the evidence before him; but he is specially authorized by the act to ignore the usual rules of evidence and procedure and permitted to make an inquiry on his own account "in such manner as to best ascertain the rights of the parties." The machinery set up by this act and its operation are novel and quite extrajudicial, and it is plain that the courts are not authorized to interfere unless the award is clearly not in accordance with law. 33 F.(2d) 219 [2] It is claimed that here that situation exists, because as alleged there was no evidence to support the order of the deputy commis sioner; but that can hardly be said to be the case where the injured man and his maimed hand were examined by the deputy commissioner, who evidently considered that the testimony of two doctors, called by the plaintiff, as to the percentage of disability due to the loss of parts of two fingers, should be modified by the facts as observed by him supplemented by the application of the rigid rules of compensation specified in the act and covering every particular finger. The plaintiff has evolved a theory that the deputy commissioner reached his conclusion of a 40 per cent. disability because a doctor, not a witness, so wrote him, the letter having been found among the papers of the case. Even if this should be grounds for setting aside the award-of which I am very doubt ful-it is apparent that the deputy might have come to the same conclusion himself from his observation of the hand of the plaintiff. It is not wholly a medical question after the hand has come to its permanent condition. The judgment of the deputy commissioner should be as good as that of a doctor. [3] There is no appeal from the finding of the deputy commissioner. His award is final. It is only when it is shown that he has not proceeded according to law that the court has any jurisdiction. [4] A pure question of fact was before the deputy and decided by him. He had a right to ignore the opinion of the doctors and to rely on other evidence and his own observations and judgment. I do not find that the court in this case is authorized to interfere with the action of the deputy commissioner, and the judgment must be, bill dismissed, with costs. A decree may be entered accordingly. OBERDORFER v. VANCE. In Equity. Patent infringement suit by Henry D. Oberdorfer against Forrest C. Vance, operating as the Universal Portable Bleacher Company. Decree of dismissal. Gunn, Penwell & Lindley, of Danville, Ill., and Kent W. Wonnell, of Chicago, Ill., for plaintiff. Arthur L. Sprinkle and Tine N. Daggett, both of Chicago, Ill., and B. L. Kirk, of Champaign, Ill., for defendant. LINDLEY, District Judge. To the plaintiff's suit for infringement of patent to Oberdorfer, No. 1,677,362, upon a portable bleacher, the defendant asserts two not unusual defenses, invalidity and noninfringe ment. Plaintiff relies only upon claim 3, which is as follows: "In a portable stand structure, a pair of spaced supporting jacks each having pairs of opposite angularly disposed legs, the opposite legs of the jacks being inclined away from each other, and means for bracing and spacing the jacks apart comprising projections at the outer sides of the opposite legs, and a cross bar with slots at the ends of the bar to engage the projections." The record discloses that all of the elements included in this claim are old so far as the art of constructing bleachers is concerned, unless it be the element described as "means for bracing and spacing the jacks apart comprising projections at the outer sides of the opposite legs, and a cross bar with slots at the ends of the bar to engage the projections." The practical effect of the inclusion of this element in plaintiff's combination is to substitute for boards or braces nailed transversely to the jacks or stringers, or otherwise securely fastened to the same, for the purpose of bracing and spacing the same, metal crossbars dropping into slots at either end; the said slots being firmly attached to the jacks. The question of validity, therefore, lies in the question of whether the addition of this detachable bar as a bracer and spacer amounts to invention. In the art of knockdown bedsteads, scaffolding, and furniture, similar elements are old. The foot and head of the common bedstead are set up and firmly fixed by dropping into slots at either end the so-called rails. District Court, E. D. Illinois. June 29, 1929. Knockdown and detachable structures of va No. 166. Patents 328-1,677,362, claim 3, for portable bleacher, held invalid for want of invention. Oberdorfer patent, No. 1,677,362, claim 3, for a portable bleacher, held invalid for want of invention. rious character have known similar elements from time immemorial. Prior to the granting of this patent, the skilled mechanic constructing the portable bleacher had before him a bleacher consisting of the stringers, jacks, and other elements described in the claim, with the exception of detachable braces and spacers, which would make the structure collapsible. In the old structure this spacing and bracing, as we have said, was accomplished by the nailing of crossbars to the jacks or stringers or both. The mechanic confronted with the problem of replacing this fixed bracing and spacing bar with an element that was detachable so as to achieve the result of detachability or portability, might have used the idea of the bed rail, old in the art. He might have used crossbars attached with heavy, easily removed screws; he might have placed upon each of the jacks a piece of metal containing a hole, and made use of a rod with turned down ends which would drop into the holes, or he might have made use of any one of a number of known removable bars. In this situation it seems to the court that the solution of the problem involved only the exercise of ordinary mechanical skill, and that no invention was achieved. The language of the Supreme Court of the United States in the case of the Pope Mfg. Co. v. Gormully & J. Mfg. Co. et al., 144 U. S. 254, 259, 12 S. Ct. 643, 645, 36 L. Ed. 426, at page 428, is directly in point. There, in discussing the validity of patents which were alleged to be improvements over the prior art, the court said: "It may be said of both of these patents that they are mechanical adaptations of or variations from what had before been exhibited by the English patents, rather than inventions of any thing essentially novel. They appear to involve such immaterial changes as would be required to adapt a known device to use in a combination with other elements already existing, and such as would occur to any skilled mechanic. Indeed, the objects of these patents, and the same remark may be made of all, or nearly all, involved in these suits, seem to have been principally to forestall competition, rather than to obtain the just rewards of an inventor. It is true the defendants make use of devices similar in many particulars to those employed by the plaintiff, but they, too, seem rather to have adopted prior and known devices, and fitted them to the peculiar construction of their machine, rather than to have purloined them from the plaintiff." The court is of the opinion that this language of the Supreme Court is applicable to the present situation. Claim 3 of the patent sued upon is void for want of invention. There will be a decree dismissing the bill for want of equity at the costs of the plaintiff. HOWARD et al. v. MONAHAN, Deputy Com'r. District Court, S. D. Texas, at Houston. May 30, 1929. No. 335. Master and servant 417 (9)-Failure of Deputy Commissioner to file specific findings of fact in accordance with instructions required vacating award (Longshoremen's and Harbor Workers' Compensation Act [33 USCA § 939]). Failure of Deputy Commissioner to file specific findings of fact in accordance with instructions issued by commission under authority of Longshoremen's and Harbor Workers' Compensation Act (33 USCA § 939) held to require vacating award of the commission, since, in view of large powers given commissioner and narrow limits within which review is allowed, it is essential that commissioner conduct proceedings in accordance with law and rules laid down and instructions issued by commission, On motion for rehearing. Decree in accordance with opinion. For former opinion, see 31 F.(2d) 480. Cole, Cole, Patterson & Kemper, of Houston, Tex., for plaintiffs. Royston & Rayzor, of Houston, Tex., for defendant. HUTCHESON, District Judge. At a former term of this court a final decree was entered denying the relief in part and in part remanding the case to the Deputy Commissioner. At the same term plaintiff filed her motion for rehearing, praying that the court set aside and vacate so much of its judgment as was adverse to plaintiff, which motion was by the court taken under advisement and carried over until the present term of this court. On the hearing of that motion it was brought to the attention of the court that the Compensation Commission had issued instructions prior to the hearing of this cause by the Deputy Commissioner, requiring the commissioner to make fact findings, which instructions provided as follows: "Such compensation orders should contain full and complete findings of fact without conclusions, discussion or argument, and the award granting compensation or rejecting the claim should be the conclusion or judgment without reciting facts or quoting the law." That these instructions were repeated, in substance, in the following form: "All material facts must be in findings of fact and not in the award of compensation or rejection of the claim." Thereafter plaintiff made application tc amend the original pleading to set out and embody therein the orders and instructions above referred to, which amendment the court allowed. 33 F.(2d) 221 Upon the pleadings as amended plaintiff now asserts not only that the award was invalid apart from the instructions, but by reason of the violation of the instructions it was also made clearly invalid. Upon the original hearing of this matter I reached the conclusion, and in an opinion declared that the proper practice in such hearings before a commissioner required findings of fact, but that since the statute did not require such findings and merely authorized the setting aside of the award if contrary to law, if the award were set aside because of failure to find such fact findings, the court would be adding a term to the statute. In view of the undoubted wisdom, if not necessity, of filing such findings of fact as adverted to in a former opinion in this case, and in view of the instructions issued by the commission to file specific findings of fact, which instructions were in this case violated, I think it entirely plain that the action of the commissioner in this case was contrary to the due administration of the law, and that the former judgment in this cause should be set aside and judgment now rendered vacating the award of the commissioner and sending the cause back for further trial in accordance with law. That the matter of findings was embodied in instructions rather than rules and regulations, I do not find material. The statute was intended to be remedial, and to give speedy justice while preserving substantial rights. And in view of the large powers given to the commissioner and the narrow limits within which a review is allowed, it is essential to due process in such cases that the commissioner conduct his proceedings in accordance not only with the law, but with the rules laid down and the instructions issued by the commission itself. Section 939 of the Longshoremen's Act (33 USCA § 901 et seq.) provides that: "The United States Employees' Compensation Commission shall administer the provisions of this chapter, and for such purpose the Commission is authorized to make such rules and regulations as may be necessary in the administration of this Act." And to contend that because these directions for the proper disposition of the substantial rights of the parties involved were by the commission called "Instructions" instead of "Rules and Regulations" deprives them of authoritative effect is a "sticking in the bark." Let a decree be prepared and presented within 10 days in accordance with this opinion. NATIONAL SURETY CO. v. OSWEGO STATE BANK OF OSWEGO, KAN., et al. District Court, D. Kansas, Third Division. June 1, 1929. No. 321. Banks and banking 80 (4) - Surety held entitled to priority against assets of insolvent bank for amount paid United States on depository bond (31 USCA §§ 191, 193). Under the express provisions of Rev. St. §§ 3466, 3468 (31 USCA §§ 191, 193), surety on bond of bank to secure United States deposits is entitled to priority of claim against assets of insolvent bank in amount paid by it on such bond. In Equity. Suit by the National Surety Company, a New York corporation, against the Oswego State Bank of Oswego, Kan., and others. Decree for complainant. McAnany, Alden & VanCleave, of Kansas City, Kan., for complainant. Elmer W. Columbia, of Oswego, Kan., for defendants. POLLOCK, District Judge. Defendant bank failed, and was by the bank commissioners of the state placed in the hands of a receiver to settle its affairs. At the time of its failure it had on deposit in its hands $28,500 of the funds of the United States arising out of Indian Affairs. In order that the bank might procure this deposit from the government, it was required to and did give a surety bond for its repayment, which was done with plaintiff, National Surety Company, as surety thereon. After the failure of the bank, plaintiff, as surety on the bond, was required to and did pay the government the amount of its demand against the bank. Plaintiff now brings this suit to obtain a decree against the bank and its receiver in charge of its affairs in liquidation requiring the payment to plaintiff of the amount it was required to pay the government as surety on the bond of the bank. This suit is based on the ground the government by force of its statutory laws was entitled to priority in payment to it by the bank, and, as the plaintiff surety on the bond of the bank to the government was required to and did pay the government, it is now entitled to be subrogated to all rights the government had for its payment against the bank or its receiver. |