Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

PER CURIAM. This is a suit for infringement of two patents upon car coupling apparatus. The appellant alleged infringement of claim 3 of the Brown patent, No. 781,127, of January 31, 1905, and claim 2 of the Jackson patent, No. 946,603, of January 18, 1910. These claims are in the margin. The district court found no infringement, and dismissed the bill.

[1] A car coupler is a familiar apparatus. Every structure involved in this case is simple and clear. The art is extremely crowded, and the steps taken by the patentees were, at the best, limited. The case involves no new or doubtful questions of law, but only the application of common rules. We see no object in elaborated descriptions or extensive discussion, and we think a mere statement of our conclusions will be sufficient. Claim 3 of the Brown patent calls, among others, for two distinct and independent elements. It specifies that the couplerhead and the spring-casing shall be "detachably connected," and that the bar or key which connects the casing and the draft-irons shall "also lock" this detachable connection. Here are two distinct functions, engaging two parts and locking the engagement. The connection between coupler and casing is by a bayonet joint, and when this engagement has been completed by partial rotation of the inserted member, the joint resists a blow or a pull. The only trouble is that there may be accidental turning of one in the other, whereby the effective engagement will be broken. The bar, by passing through slots in both parts, locks against inadvertent rotation. The bar cannot be the contemplated means of connection, because one of the slots is openended, and if it were not for the bayonet joint, the coupler and casing would pull apart. In the defendant's form, there is no detachable engagement, save as any two parts which are bolted together are detachably engaged while the bolt is in position. Neither is there any lock, save as parts capable of detachable engagement may be considered locked together while they are engaged. Defendant has a single bolt passing through those parts of the draft-irons and the coupler-head and the casing which lie in the same transverse plane. We are satisfied that this bolt cannot be considered both the detachable connection and the lock of the Brown patent. We might find the detachable connection or we might find the lock, but we cannot find both, except in the sense that one is always the other; and the claim is not entitled to a breadth of construction reaching that situation.

[2] It is practically conceded at least, it is clear-that claim 2 of the Jackson patent recites a combination which is identical with earlier combinations, unless for the provision that the side wings should have "transversely crowned inner faces." The coupler shank passed back between the sides of a yoke or inclosing structure. It could not be closely held therein because it must rock laterally when the train went around a curve. Accordingly, the side faces of this yoke were provided with inwardly and laterally projecting crowns or convexities which made contact with the sides of the coupler shank opposite to each other. The result was that the coupler shank would rock one way or the other, resting upon one of these points, and space was thereby provided for the forward part and the rear part of the shank to move laterally and oppositely. We see no possibility of attributing to this expedient the merit of invention. The old corresponding open-ended frames or casings had always been provided with flaring mouths to allow for this rocking by all kinds of coupler shanks, and even by the old style links. Of course, if the shank was so hung that its rear part moved laterally in the opposite direction from the lateral motion of its forward part, space must be given in which the rear part could move; and to provide this space was what Jackson did. The involved language of the claim does not raise to a higher power that ordinary degree of mechanical skill which alone is involved.

The decree below is affirmed.

(244 Fed. 176)

PATENTS

HOBBS PATENT CO. v. ATLAS SPECIALTY MFG. CO.
(Circuit Court of Appeals, Seventh Circuit. April 10, 1917.)

No. 2440.

328-VALIDITY-PRIOR USE-COVER FOR RADIATOR.

The Hobbs patent, No. 901,616, for an insulating cover for automobile radiator and hood, held void for prior public use by others.

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.

Suit in equity by the Hobbs Patent Company against the Atlas Specialty Manufacturing Company. Decree for defendant, and complainant appeals. Affirmed.

George L. Wilkinson, of Chicago, Ill., for appellant.

Frank T. Brown and Arthur L. Sprinkle, both of Chicago, Ill., for appellee.

Before BAKER, MACK, and ALSCHULER, Circuit Judges.

MACK, Circuit Judge. This appeal is taken from the decree of the District Court, holding Hobbs patent, No. 901,616, granted October 20,

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1908, upon an application filed February 14, 1908, void for want of patentable novelty.

The patent in suit is for a heat-insulating cover for the hood and radiator of an automobile. The cover has flaps extending across the outer front surface of the radiator. These may be fastened together when the engine is not running. They may also be flung back when the machine is in motion, to allow the heat to radiate, and to prevent the boiling of the water in the radiator.

A careful reading of the record but confirms the view, expressed at the oral argument, that the evidence clearly and convincingly establishes the defense of prior use. Covers substantially like the patented devices and made by others are shown to have been in use at least a year prior to Hobbs' reduction to practice. His earliest established date is that of the filing of the application.

A brief statement of some of the evidence will suffice. C. P. Kimball & Co., of Chicago, at one time made a radiator cover for J. М. Harris, then of Chicago. A book kept by the repair department of the Kimball Company, in which the labor cost of various items was recorded, shows, under the account of J. M. Harris, "Cover for radiator, $2.50." From the number of the account and the dates appearing in the book, it is clear that this work was done in 1905. The entry was identified by the carriage trimmer who made the cover, and who has now become the superintendent of the repair department, by the foreman who made the entry, and by the then superintendent of the repair department, who placed at the time a notation thereon. The only possible question is whether this Harris cover was merely a plain piece of material fitting over the front of the radiator and attached thereto by cotter pins, or whether it extended over the entire radiator and had an adjustable curtain in front. A price list book kept by the trimmer gives the labor cost for a cover, which is there termed "a cooler cover with roll-up curtains," as $2.50. The labor involved in making a cover with an adjustable front curtain was greater, and the cost appreciably higher, than that of a cover consisting of a plain piece of pantasote fitted over and attached to the front of the radiator. Both the trimmer and the foreman unhesitatingly testified, from the labor charge made, that the Harris cover was such a radiator cover with an adjustable front curtain, similar to one made up for the purposes of the trial and introduced as an exhibit. Nothing in their testimony or in the record tends to cast doubt on the reliability of the inferences which these witnesses, having personal knowledge of the business, drew from this cost item.

Their independent recollection, so far as they had any, is that Kimball & Co. manufactured these accessories before 1908. The carriage trimmer was almost positive that he had made a radiator cover with an adjustable front curtain in 1904. Another employé testified that the company was making covers of this type when he entered its employ in March, 1907. The testimony of all four of the witnesses is straightforward and unimpeached. They are old, respectable, and trustworthy employés of the Kimball Company, and on the record are entirely disinterested.

While search might have been instituted in New York, whither Harris had moved, for him or for the cover, yet in view of the undisputed testimony that the life of such a cover is four or five years, the failure to produce the original cover or to account for its absence does not materially weaken this defense. The destruction of Kimball's office books in a disastrous fire a few years before the hearing prevented the offering of any additional evidence that they might have furnished as to the character or selling price of the Harris cover.

The only feature of the patented cover that this Harris cover does not anticipate is that part which extends over the hood. There is some evidence that the Kimball Company was also making hood covers before 1908. But, rejecting that evidence as insufficient, and assuming that some invention over the use of lap robes is involved in Hobbs' "tailored to fit" hood cover, the Hobbs' patent is invalidated by reason of the prior use of such a cover by the Chicago Carriage & Trimming Company. The books of that company conclusively establish that such a cover for an automobile hood was made for a customer on November 13, 1907. There is other evidence in the record of a prior use, which, however, we deem it unnecessary to comment upon. Decree affirmed.

(244 Fed. 321)

TAYLOR et al. v. UNITED STATES.

(Circuit Court of Appeals, Fourth Circuit. July 28, 1917.)

No. 1512.

1. CRIMINAL LAW 1156(1)-CONSIDERATION OF ERROR-REFUSAL OF TRIAL COURT TO GRANT NEW TRIAL.

Though the Circuit Court of Appeals will not entertain a writ of error in a criminal case where the trial court, in its discretion, refuses to grant new trial, nevertheless, in a prosecution for conspiring to violate the laws of the United States by returning another to the condition of peonage, where it is apparent on the face of the record that error has been committed determinative of the questions involved, the court will consider the same on error though the trial court refused to grant new trial.

2. SLAVES 24-STATUTE- "PEONAGE."

"Peonage," within Pen. Code 1909, § 269 (Act March 4, 1909, с. 321, 35 Stat. 1142 [Comp. St. 1916, § 10442]), providing that whoever holds, returns, or aids in the arrest or return of any person to a condition of peonage shall be fined or imprisoned, is a status or condition of compulsory service based on the indebtedness of the peon to the master.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Peonage.]

3. SLAVES24-RETURNING TO CONDITION OF PEONAGE-STATUTE.

Where defendant employed a servant for a year at $10 a month, and independently loaned him $13 to enable him to get married, and the servant, on discovering that he could not live on his wage, left the employment, and defendant, having initiated a prosecution against him under state law for so doing, declined to release the servant unless the latter paid up all he owed him, together with $25 additional for damages, and the servant paid, but defendant later procured his arrest on a magistrate's warrant, the servant being forced to work in the chain gang. neither defendant nor the magistrate placed the servant in a condition of peonage to warrant their conviction of the offense of so placing him in violation of Pen. Code 1909, § 269, the servant never having been in a condition of peonage.

4. CONSPIRACY

UTE.

28-RETURNING SERVANT TO CONDITION OF PEONAGE-STAT

The act of a master and a magistrate in conspiring to put the master's servant in a condition of involuntary servitude through a prosecution for breach of his contract of employment, in order to require him to perform his contract to work one year for the master, was insufficient to warrant a conviction, even if their conduct resulted in placing the servant in involuntary service, under Crim. Code 1909, § 37 (Comp. St. 1916, § 10,201), denouncing the offense of conspiring to commit an offense against the United States, for having conspired to violate section 269, providing that whoever returns any person to a condition of peonage shall be fined, etc.. the servant never having been in such condition, so that his master and the magistrate could not return him to it.

5. SLAVES24-STATUTE-"PEONAGE" - "DEBT."

One cannot be deemed guilty of peonage where he has held another in involuntary servitude to compel such other to comply with an agreement to work for a certain term, since an obligation to work cannot be reasonably construed to mean a "debt" as contemplated by the peonage statute (Pen. Code 1909, § 269).

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Debt.]

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