text:
    ERIE R. CO. v. IRONS.
    No. 4378.
    Circuit Court of Appeals, Third Circuit.
    March 19, 1931.

      Collins & Corbin, of Jersey City, N. J. (Edward A. Markley and Charles W. Broadhurst, both of Jersey City, N. J., of counsel), for appellant.
    Charles Hershenstein, of Jersey City, N. J. (Thomas G. Haight, of Jersey City, N. J., of counsel), for appellee.
    Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMPSON, District Judge.
   WOOLLEY, Circuit Judge.

On the occasion in question, a Bush Terminal freight ear float was moored to a float bridge of the Erie Railroad Company in the navigable waters of the Hudson River at Jersey City. A switching crew, consisting of a conductor, two brakemen, an engineer and fireman, was engaged in shunting loaded freight cars onto the float. One draft had been placed on its southerly track. The engine with three empty pushers and the remaining draft of five loaded cars then proceeded to move eastwardly over the bridge and onto the northerly track of the float. The movement was being made under the direction of the conductor with the aid of two brakemen, Irons being nominally the forward brakeman and.Smith the rear brakeman, though in the direction of the movement their positions were physically reversed. When the draft came to rest on the float, Smith mounted the most easterly car and, either at once or later, put on its brakes and the brakes of other cars. Irons set the brake of the westerly ear, descended to the deck, and, either at the command or. with the assent of the conductor, uncoupled that car from a pusher, thus cutting out the draft, and signalled the engineer to go ahead. This the engineer did by moving the engine only a few feet yet far enough to carry the last pusher off the float and onto the bridge, leaving a space of twelve or fifteen feet between it and the first car.

The float had a hump in the middle from which the deck inclined fore and aft. All at once the draft of ears began slowly to move toward the bridge. Irons picked up a block and in his unsuccessful effort to chock a wheel had one of his feet caught by the block and the other by a frog or a rail, causing him to fall under the car where he sustained an injury resulting in the loss of a leg. He brought suit under the Federal Employers’ Liability Act (45 USCA §§ SI-SA) for this personal injury and, after verdict, had the judgment from which the defendant railroad company now appeals, assigning several errors involving additional facts which we can state more appropriately in the separate discussion of each assignment.

The first error the defendant charges to the court was its refusal to direct a verdict in its favor on three grounds: (a) That there was no evidence of negligence On its part; (b) that as matter of law the plaintiff assumed the risks of his injury; and (c) as matter of law the accident was solely due to the contributory negligence of the plaintiff.

On the question of negligence of the defendant two issues were raised and submitted and certainly one, and maybe both, were decided. The first was whether or not the brakes on the cars were defective or “inefficient” in violation of the Safety Appliance Act (45 USCA § 1 et seq.); the other whether Smith, the rear brakeman and Irons’ fellow-workman, was negligent in performing his work of promptly and efficiently setting the brakes when the draft came to rest. If a finding on both of these issues could not be sustained by. the evidence, then, clearly, a verdict should have been directed for the defendant. But the two issues were submitted in the alternative and if either could be found for the plaintiff on supporting evidence that would be enough under proper instructions.

There was evidence that- had the brakes been efficient, the one brake set by Irons and the two (or more) set by Smith before the ears began to move would have held the draft, raising the permissible inference that the brakes were defective. Though expert, in quality, this, nevertheless, was evidence for the jury to accept or reject. The defendant, however, maintains that there was absolutely no evidence that Smith had set even one brake completely and securely before the ears began to move and, accordingly, that the jury, in finding the brakes defective, was allowed to base their inference not on a proven fact but on another inference. Manning v. John Hancock M. I. Co., 100 U. S. 693, 25 L. Ed. 761. Opposed to the defendant’s position we find positive testimony (R 132) that Smith applied the brakes on the two rear cars when the draft was stationary. There is testimony that he applied the brakes on the other cars but it -is uncertain whether, when he did so, the ears were stationary or moving; and there is also testimony that all the brakes set by him were seeurely set in that by a later test they could be moved only one notch more. We think this is valid evidence on the issue of defective brakes and sustains the jury’s possible finding on this one of the two issues.

And as to Smith’s negligence there is evidence that sustains the jury’s possible finding for the plaintiff on that issue, for it is certain from the character of the verdict that on either one or the other of these issues the jury found for the plaintiff. In respect to this second issue the defendant, somewhat contrary to its position on the first, maintains there was no evidence to dispute Smith’s word that he so completely and securely set the brakes that when, after the accident, he went over the cars, as ordered, he was only able to take up each brake one notch more by using his entire strength with a brake stick. But the negligence charged to him as a fellow-workman was not in failing adequately to set the brakes but in failing seasonably to set them. It was Ms duty to jump on the cars as they came upon the float, climb to the top and apply the brakes at the east end and work west as soon as the ears stopped. Irons immediately applied the brake by hand on the westerly end of the first car and then, as was Ms duty, climbed down to make the cut. But Smith was late in getting up on the ears and the evidence shows that if he had promptly and properly performed his duty and had jumped upon the cars when they were going onto the float and had begun tightening the brakes as soon as the cars had stopped, he would have had time to tighten all the brakes while Irons was tightening one, descending to the ground and preparing to make the cut. Everyone agrees that if the brakes had been efficient and all had been set the draft could not have moved. We think tMs evidence was enough on wMeh to submit the issue of Smith’s negligence to the jury.

The defendant’s next ground for a directed verdict was that, as matter of law, the plaintiff assumed the risks of Ms injury. There is no question that in an action under the Federal Employers’ Liability Act the defense of assumption of risk (save in specified eases) continues as at common law. Seaboard Air Line v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915 C, 1, Ann. Cas. 1915B, 475; Chesapeake, etc., R. Co. v. Proffitt, 241 U. S. 462, 36 S. Ct. 620, 60 L. Ed. 1102; Southern Pacific Co. v. Berkshire, 254 U. S. 415, 41 S. Ct. 162, 65 L. Ed. 335. But the legal responsibility of the employee in assuming risks depends somewhat on whether they are a part of or incident to Ms employment, and are, or should be, known by him. The defendant maintains that the risk of the cars moving on the float prior to the brakes being fully and efficiently set by Smith was an obvious risk of Irons’ employment wMch he assumed as a part of Ms contract of hire. But Smith’s action was charged as negligence and the jury found that either his negligence or that of the defendant in supplying inefficient brakes was the proximate cause of Irons’ injury. An employee does not, under the Federal Employers’ Liability Act, assume as a part of his contract of employment the risk of the negligence of a fellow-employee or of his master in supplying inefficient appliances in violation of the Safety Appliance Act.

The final ground on the motion for a directed verdict was that the accident was due solely to the negligence of the plaintiff himself. If that were true, he of course should not recover. Davis v. Kennedy, 266 U. S. 147, 45 S. Ct. 33, 69 L. Ed. 212; Illinois Central R. Co. v. Skaggs, 240 U. S. 66, 36 S. Ct. 249, 60 L. Ed. 528. Having held that there was evidence to submit the alternative issues of negligence on the part of the defendant to the jury, it would be legally inconsistent to say that the learned trial judge should have directed a verdict for the defendant on the ground that the plaintiff was solely negligent. The defendant’s main contention on this issue is that Irons should have satisfied himself before making the cut that Smith had properly performed his duties by fully and efficiently applying the brakes. Smith’s duty was fixed by rule or practice and was known to Irons, hence we think Irons might have assumed that Smith had performed Ms duty. However that may be, the conductor was in charge of the movement, both Smith and Irons were within Ms view and Irons made the cut on the conductor’s direction or with Ms assent.

'We find no error in the court’s denial of the motion for a directed verdict.

The defendant next charges error to the trial court in denying its motion for a new trial based on the ground that the damages were excessive. The appellant recognizes the general rule that a trial court on a motion for a new trial may in the exercise of its discretion deny the motion and that its action is not a subject of review by an appellate court. Henderson v. Moore, 5 Cranch, 11, 3 L. Ed. 22; Railway Co. v. Heck, 102 U. S. 120, 26 L. Ed. 58; Ayers v. Watson, 137 U. S. 584, 11 S. Ct. 201, 34 L. Ed. 803; Pickett v. United States, 216 U. S. 456, 30 S. Ct. 265, 54 L. Ed. 566. It maintains however as an exception to this very firm rule that where the denial of the motion is an abuse of discretion or due to the application- of erroneous legal principles, it is a subject for review on appeal.

We discern nothing in the matter raised on the motion for a new trial involving legal principles and capable of an erroneous application and therefore reviewable within the sense of Chesapeake & Ohio Railway Company v. Gainey, 241 U. S. 494, 36 S. Ct. 633, 60 L. Ed. 1124, and of our own ease of Stetson v. Stindt (C. C. A.) 279 F. 209. Here the learned judge was dealing only with the amount of the jury’s verdict in an action of tort and was called upon to exercise his discretion in determining whether or not on the record before him the ver-diet was excessive. In performing that duty we find he did not abuse his discretion.

The real trouble in this ease arises from the next question which is whether under the facts as set forth in the complaint and proved at the trial the court had jurisdiction of this suit under the Federal Employers’ Liability Act, or was the plaintiff’s sole remedy under the Longshoremen’s and Harbor Workers’ Compensation Act (44 Stat. 1424 [33 USCA §§ 901-950), to be pursued in the method there prescribed which initially is not by suit in a district court. This question was brought to the attention of the court (after the case had been tried, verdict rendered, rule for a new trial dismissed and judgment entered) on a petition to set aside the judgment and, being a jurisdictional question, is urged on this appeal under authority of C., B. & Q. R. R. Co., v. Willard, 220 U. S. 413, 31 S. Ct. 460, 55 L. Ed. 521, and Continental National Bank v. Buford, 191 U. S. 119; 24 S. Ct. 54, 48 L. Ed. 119.

In this case the plaintiff not only pleaded the Federal Employers’ Liability Act‘but counted on that act and specifically averred a violation of the Safety Appliance Act. At the trial the defendant admitted that, at the time of the injury, the cars in question were engaged and the- plaintiff was employed in interstate commerce and the case was, with the concurrence of everyone, tried to judgment under the Federal Employers’ Liability Aet.

As to the evidence the defendant neither at the trial nor later on motion for a new trial made a claim that the plaintiff’s injury was maritime in character because sustained when he was engaged in a marine employment, yet, on the motion to set aside the judgment it said, and here urges, that the evidence established that fact and necessarily divested the court of the jurisdiction of the case which it had assumed under the Federal Employers’ Liability Aet. The matter was earnestly argued before the trial court, and in this court, on opposite theories by opposing counsel. The defendant maintained that, whatever his previous employment and whoever was his employer, Irons was at the moment of his injury loading a vessel in navigable waters and therefore was performing a maritime service, Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 S. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157; Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Nogueira v. N. Y., N. H. & H. R. R. Co., 281 U. S. 128, 50 S. Ct. 303, 74 L. Ed. 754, which establishes that Irons’ remedy for the resulting - injury was' exclusively under the Longshoremen’s and Harbor Workers’ Compensation Act.

The position of the plaintiff was, and is, that he was not a longshoreman employed at the time of his injury in loading a vessel but was á railroad employee and as such was, wholly without regard to place, engaged purely in a railroad service, and-that the Congress did not put one so employed within the terms of the act. Like ourselves, the trial judge did not feel called upon to decide this question. He disposed of the motion .adversely to the defendant on a finding that, as a right of action is preserved to an injured employee unless his employer has qualified to invoke the statute, the defendant had not shown the things required of it to bring the injury within the aet. The antecedents of the Aet and the steps by which it was developed may be found in Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 S. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157; Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451; Ann. Cas. 1917E, 900; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149; 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; State Industrial Commission of State of New York v. Nordenholt Corporation, 259 U. S. 263, 42 S. Ct. 473, 66 L. Ed. 933, 25 A. L. R. 1013; Washington v. Dawson & Co., 264 U. S. 219, 44 S. Ct. 302, 68 L. Ed. 646; Panama Railroad Co. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748; Engel v. Davenport, 271 U. S. 33, 46 S. Ct. 410, 70 L. Ed. 813; International Stevedoring Co. v. Haverty, 272 U. S. 50, 47 S. Ct. 19, 71 L. Ed. 157; Northern Coal Co. v. Strand, 278 U. S. 142, 49 S. Ct. 88, 73 L. Ed. 232, and Nogueira v. N. Y., N. H. & H. R. R. Co., 281 U. S. 128, 50 S. Ct. 303, 74 L. Ed. 754. Seeing there its purpose and scope, we shall assume without deciding that shifting loaded freight cars onto the float was in essence loading cargo and was therefore maritime in character. With this assumption before us we turn to the defendant’s claimed qualifications to invoke the act and claimed place of the accident on which the learned trial judge, holding them not proved, dismisse'd the motion to set aside the judgment.

As to these qualifying essentials, the plaintiff says that the act (section 2, subsec. 3 [33 USCA § 902, subsec. 3]) excludes employees on vessels under eighteen tons net, and that there was no testimony as to the weight of the float and therefore none as to whether he was within the act. Proof that the float was 250 feet over all with a beam of 50 feet, having on its deck three railroad tracks and carrying ten loaded freight cars of a weight of 100,000 pounds each was rather conclusive evidence that the float was more than eighteen tons.

Next the plaintiff maintains there was no testimony as to the ownership of the float. However important that may be, we find none. More important, perhaps, is the plaintiff’s third contention, that where the employer fails to insure its compensation liability or to file a statement with the United States Commissioner that it is financially responsible as a self-insurer, the provisions of section 5 (33 USCA § 905) are applicable, namely, that upon the failure of the employer to secure such payment, the injured employee may elect to maintain an . action at law or in admiralty. We find no evidence that the defendant had complied with this requirement.

The. defendant however urges that all such things may be proved when Irons proceeds against it under the act and therefore need not be proved by the defendant in this ease. Manifestly that position is unsound. Eor this case has been ended by judgment and what the defendant is now trying to do is to oust the court of its jurisdiction over its judgment. This can only be done on an affirmative showing that the employee and the remedy for his injury come under some other act than the one under which his case was brought, tried and decided.

And, finally, to prevail on its motion to set aside the judgment the defendant must show from the testimony in the record that as a matter of fact (distinguished from the question of law on which we have predicated an assumption) that the injury was maritime because the accident did in fact happen on navigable waters during the performance of a maritime service. Therefore the locus in quo of the accident, being determinative of whether or not the plaintiff’s employment was maritime and his injury maritime, has a vital bearing on the question whether the Longshoremen’s- and Harbor Workers’ Compensation Act applied and whether, accordingly, the court was without jurisdiction of the ease. On this matter there was testimony to this effect:

After the draft of five cars had been placed on the northerly track of the float and been cut from the engine with its three pushers, two things happened: One, the draft remained stationary for a short time and the engine and pushers pulled away and stopped on the bridge. Thus the cars were on the float in navigable waters and the engine and pushers were on the bridge, which, being neither a boat nor a float, was for present purposes land. The easterly end of the easterly pusher on the land was about twelve feet from the westerly end of the westerly ear on the-float. The accident happened somewhere within this short span. Where? This is a jurisdictional question which, manifestly, must be answered. In looking for the answer' we find testimony which further contracts the space within which it did happen and lessens the probability of its occurrence on the float. It is this:

When the draft was brought to a stop on the float, the westerly end of the westerly ear was about six feet from the westerly end of the float.' Thus the probability of a marine accident is restricted to these six feet. After Irons had cut the draft and the engineer had on his signal moved the last pusher to its new position six feet on the bridge and stopped, the draft on the float started to move toward the bridge. Irons was crossing the track within two feet of the westerly end of the westerly ear when the conductor called and warned him. He was then within four feet of the end of the float. Either then or before the draft started to move (a mooted question) he grabbed a block with which to chock a car wheel but the block, not holding, slid in front of the wheel. To make it hold, Irons stooped down and held it against the wheel, walking backwards in doing so. In this position and in this movement he walked about four feet. Thus the remaining space on the float was consumed. He was then either bn the float at its edge or on the bridge at its edge. Then the block caught one of his feet and the frog or a rail caught his other foot and he fell .under the moving car. He grabbed the axle of the second pair of wheels and an instant later a wheel ran over his leg. Still holding on to the axle he stopped when the draft hit the first pusher on the bridge and extricated himself from between the wheels of the westerly car and the easterly pusher. Op this evidence, even conceding a latitude in the figures favorable to the defendant, or on other evidence that made the span between the pusher and car a few feet longer, it is certain that the evidence did not disclose to the learned trial judge the place of the accident, whether it was on the bridge or the float, whether on land or water, and, accordingly, did not prove that the accident was maritime and that the case came under the Longshoremen’s and Harbor Workers’ Compensation Act. The most that the evidence showed him was that the occurrence began on the float and ended on the bridge, and that the accident happened somewhere during the occurrence. On this evidence the defendant, on its motion to open the judgment for want of jurisdiction, did not prove as an essential fact that the disability Of the plaintiff resulted from an injury occurring upon navigable waters of the United States even if before the injury he was engaged in a maritime operation of loading the float with cargo in ears.

The judgment is affirmed.


source: Caselaw Access Project

author: SAWTELLE, Circuit Judge.

license: Public Domain

text:
    HALL v. UNITED STATES.
    No. 6342.
    Circuit Court of Appeals, Ninth Circuit.
    March 23, 1931.
    John W. Ray, of Phoenix, Ariz., for appellant.
    John C. Gung’l, U. S. Atty., of Tucson, Ariz., and J. S. Wheeler, of Phoenix, Ariz., and B. G. Thompson and Norman S. Hull, Asst. U. S. Attys., both of Tucson, Ariz.
    Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.
   SAWTELLE, Circuit Judge.

This is the second appeal in this .case. See 41 P. (2d) 54.

Appellant was convicted upon three separate counts of an information charging: First, the unlawful possession of approximately 200 gallons of intoxicating liquor; second, the unlawful possession of certain property designed for the manufacture of intoxicating liquor; third, the maintenance of, a common nuisance.

The government introduced evidence tending to prove that on or about July-15, 1928, George C. Ruffner, sheriff of Yavapai county, Arizona, had a conversation with appellant, Joe Hall, in which conversation Ruffner, among other things, said, “Well, now Joe, as far as this pool-hall business is concerned that is legitimate business, we issue licenses for that, but as for this other stuff, this making whiskey, I am going to make you quit,” to which Hall replied, “Well, now, George, I want to tell you something, * ” ’* I have got 350 gallons o£ damned good whiskey and I am going to sell it”; that a short time after this conversation Ruffner secured a search warrant from the superior court of said county to search Hall’s residence and pool hall; that as a result of such search Ruffner found and seized the liquor referred to, as well as a gas burner, pressure tanks, condensers, a copper boiler, a cooling tank, and other property used and useful in the manufacture of intoxicating liquor; that all the above-described property is set forth in the return on the search warrant; that, at the time Ruffner secured the search warrant and proceeded to appellant’s premises to make the search, Ruffner expected to find appellant either making or selling whisky, violations of the state prohibition law, and that he did not conceive the idea of turning the property over to the federal officers until after he had made the search and seizure and realized that appellant could only be prosecuted for the unlawful possession of the seized property, which is not-a violation of the state prohibition law.

This court held on the former appeal that “the affidavit for the search warrant was on information and belief, and was clearly insufficient under the federal statutes. '* * * The provision of the fourth amendment to the Constitution, forbidding unreasonable searches and seizures, refers to governmental action, and is not invaded by unlawful acts of individuals or of municipal or state officers, in which the government has no part. Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159. But evidence obtained through wrongful searches and seizures by state officers who are co-operating with federal officers must be excluded. Byars v. United States [273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. 520], supra; Gambino v. United States, 275 U. S. 310, 314, 48 S. Ct. 137, 52 A. L. R. 1381, 72 L. Ed. 293. The latter case went one step further and held that where the search and seizure was made by state officers for the sole purpose of aiding in the prosecution of a federal offense, the testimony must be excluded, whether there was co-operation between state and federal officers at the time of the search and seizure or not.” Hall v. United States, supra.

The trial court, after hearing all the evidence, concluded that at the time the state officer made the search and seizure he had no intention of securing evidence for the government and was not acting in co-operation 'with government officers; hence overruled appellant’s motion to suppress the evidence. The evidence was sufficient to support the finding of the court in that regard. This disposes of the first assignment of error.

In this connection it might be well to consider assignment 8. It assigns as error the ruling of the court on appellant’s objection to the admission in evidence of the affidavit for the search warrant, the search warrant itself, and the return thereon containing an inventory of the property seized. The record discloses that same were offered mid admitted for the purpose of corroborating the testimony of the witness Ruffner, to show that the warrant was executed, and to identify the specific property that was seized under the warrant. In our opinion there was no error in admitting these documents. They were admissible not only as tending to corroborate the witness Ruffner’s testimony as to the kind and character of the property which he found and seized, but also as tending to prove that in making the search he acted upon his own initiative as a state officer in attempting to enforce a state statute, and that he was not acting in co-operation with any federal officer.

In his brief, counsel for appellant states that “argument is not offered on assignments 2, 3, 4, 7, and 11,” but he admits that said assignments were considered and disposed of by this court on the former appeal. This leaves for consideration assignments 5, 9,10, 12,13,14, and 15.

Assignment 5 is argued in connection with assignments 13, 14, and 15.

Assignments 9 and 10 allege that the “court erred in denying defendant’s motion for a directed verdict in favor of the defendant,” and that “the verdict of the jury is contrary to the law and to the evidence.” In support of these assignments, counsel for appellant contends that “without the evidence obtained under the void search warrant there was no evidence upon which a jury could legally arrive at a verdict of guilty and a directed verdict in favor of defendant should have been granted.” The bill of exceptions fails to state that it contains all the evidence produced on the trial; therefore the question whether there was any substantial evidence to justify a conviction is not before us for review. In the ease of Rasmussen v. United States (C. C. A.) 8 F.(2d) 948, 949, Judge Hunt, speaking for this court, said: “Defendants urge that the court erred in denying their motion for a directed verdict upon the ground that the evidence was insufficient to sustain conviction. But as the bill of exceptions signed by the judge fails to show affirmatively or by inference that it contains all the testimony produced upon the trial, the question whether there was any substantial evidence to warrant a conviction is not before us for review. Oregon-American Lumber Co. v. Simpson [C. C. A.] 8 F.(2d) 946 (decided November 16, 1925). Obviously, the appellate court cannot say that the presumption in favor of the verdict has been overcome in that there is lack of evidence, unless all the testimony that was produced before the lower court is brought up for review. Meyer v. Everett Pulp & Paper Co., 193 F. 857, 113 C. C. A. 643; Goldfarb v. Keener (C. C. A.) 263 F. 357; Buessel v. United States, 258 F. 811, 170 C. C. A. 105; Taylor-Craig Corporation v. Hage, 69 F. 581, 16 C. C. A. 339; Greenspahn v. United States (C. C. A.) 298 F. 736.”

Assignment 12 is “that the court erred in various rulings in the trial of Court and cause, and in the admission and rejection of evidence.” Such a general assignment of error does not comply with the requirements of Rule 11 of this court, whieh reads in part as follows: “ * * * When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected. * * * When this is not done, counsel will not be heard, except at the request of the court; and errors not assigned according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned.”

This assignment is too general and does not set forth the evidence admitted or rejected. This court should not be expected or required to search the record to find the" evidence to whieh the assignment relates.

Assignments 5, 13, 14, and 15, relate to the refusal of the court to give the jury requested instructions Nos. 3,5, and 6. The bill of exceptions does not set out the trial judge’s general charge to the jury nor the requested instructions referred to, although the latter by a mistake appear in the engrossed bill of exceptions; therefore the errors assigned are not subject to review by this court. A somewhat similar situation arose in the ease of Johnston v. United States, 154 F. 445, 449 (C. C. A. 9th). In that case, Judge Gilbert said:

“Error is assigned to the refusal of the court to give to the jury certain instructions which were requested on behalf of the plaintiff in error. We cannot consider this assignment, for the reason that the whole of the charge given by the court to the jury is not in the record. Where the record does not contain the whole charge, it will be presumed that the court properly charged upon every branch of the ease, and it will be presumed that further instructions were given to correctly modify erroneous instructions shown by the record, if it is very clear that these could have been so corrected and the record is incomplete. Bennett v. Harkrader, 158 U. S. 441, 15 S. Ct. 863, 39 L. Ed. 1046; Northern Pac. Ry. Co. v. Tynan, 119 F. 288, 56 C. C. A. 192, and cases there cited.”

“In fhe absence of the charge as given it will be presumed that the court properly instructed the jury in respect of these matters. The court is not required to grant specific prayers, if the subject-matter therein contained is properly covered in the general’ charge. With the presumption in favor of the correctness of the charge, the assignments in the present ease are without merit.” Williams v. United States, 57 App. D. C. 253, 20 F.(2d) 269, 270.

“The bill of exceptions does not contain all the instructions given. We are therefore unable to say whether defendant was prejudiced by the last instruction given, a portion of whieh was invited by his own counsel. Whether an accused is prejudiced by any particular language in a charge can only be ascertained by an examination of the entire charge. Colt v. United States, 190 F. 305, 111 C. C. A. 205. Not infrequently does it occur that language whieh, standing alone, might be subject to criticism, is entirely harmless when read in connection with other portions of the instructions.” Michael v. United States, 7 F.(2d) 865, 866 (C. C. A. 7th.)

Notwithstanding the fact that the bill of exceptions does not contain all of the evidence and the general charge of the trial judge, and that counsel has failed to comply with the rule of this court above referred to, we have in the exercise of our discretion considered the assignments of error, and do not find that any reversible error was committed by the trial court.

Judgment affirmed.


author: WILBUR, Circuit Judge.

text:
    CORNERO v. UNITED STATES.
    No. 6295.
    Circuit Court of Appeals, Ninth Circuit.
    March 23, 1931.
    Otto Christensen and Simpson & Simpson, all of Los Angeles, Cal., for appellant.
    Samuel W. McNabb, U. S. Atty., and Harry Graham Balter and Milo E. Rowell, Asst. U. S. Attys., all of Los Angeles, Cal.
    Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.
   WILBUR, Circuit Judge.

The appellant, with seven others, was charged with conspiracy to violate the National Prohibition Act. The indictment, returned on June 16, 1927, alleges that the conspiracy was entered into on the 1st of June, 1925, to “possess and transport” intoxicating liquors. The appellant pleaded not guilty on July 12, 1927. Pour of the defendants, Jones, Howell, Richards, and Allen, pleaded guilty. On May 3, 1928, a jury was impaneled to try the appellant and L. V. Murphy. The jury was discharged on May 8, 1928. The appellant claims that, by reason of the selection of the jury on May 3 and its subsequent discharge on May 8; he was placed in jeopardy. He opposed the continuance of the case and. the discharge of the jury, and, before a jury was again selected, on May 6, 1930, to try appellant and two of his codefendants, appellant interposed a plea of former jeopardy, which was overruled. Thereupon the case proceeded to trial upon the plea of not guilty, and a verdict of guilty was returned against appellant and Jack Wilson, a codefendant. The jury disagreed as to defendant L. V. Murphy. Appellant was sentenced to imprisonment for two years at McNeil Island and to pay a fine of $7,500. Wilson was placed on probation.

The general rule is that, where the jury has been impaneled for the trial of a criminal case, jeopardy has attached, and in such case the plea of former jeopardy should be sustained. There are exceptions, however, to this general rule as to what constitutes former jeopardy, and the government contends that the ease at bar comes under one of these exceptions. It appears from the record that, when the ease was called for trial, the district attorney proceeded to impanel the jury without having ascertained whether or not his witnesses were present. He was relying upon the testimony of two of the eodefendants, Howell and Jones, who had previously pleaded guilty and who were released under bond to appear for sentence on the day of trial. They were not subpoenaed as witnesses, but it was assumed by the district attorney that they would be present at the trial in view of their obligation and bond so to do. Immediately after-the first jury was impaneled, the district attorney ascertained that his witnesses were absent, whereupon the court continued the ease from, time to time to May 8. On that date the district attorney announced:

“Mr. Gallagher [the district attorney] : If your Honor please, in that matter we wish to move for a continuance on behalf of the Government. This is a matter that involves the intimidation of witnesses whom we have not been able to locate, and we are not ready for trial. We are endeavoring to locate the witnesses, and I believe, your Honor, that the continuance of this matter would not be outside the court’s sound judicial discretion.
“The Court: Are the witnesses not here?
“Mr. Gallagher: No. We have not been able to determine their whereabouts.
“The Court: What efforts have you made to get them?
“Mr. Gallagher: The witness Jones has closed his home and stored his furniture and bought two new tires for his automobile and started for a place unknown. Boarders in a house near his are watching the despatch of communications to stop them from reaching us and are intercepting messages to Jones. We have interviewed Howell’s wife and she doesn’t know his whereabouts. Those two witnesses are absolutely indispensable, to the proof of the Government’s case. '
“Mr. Simpson: If your Honor please, we renew our objections to the continuance of this ease and wish to call the court’s attention to the fact that the district attorney had an opportunity prior to the time the jury was empaneled and sworn to ask for a continuance. There have been—
“Mr. Gallagher (interrupting): The record will show I did not have the opportunity.
“Mr. Simpson: There have been no subpoenas issued in this ease for the attendance of those two witnesses, although the subpoenas were issued for other witnesses. There is no showing in this ease that if those two witnesses were present that they would be competent to testify or that their •testimony would be material. There is no showing of any due, or in fact any, diligence in this case to procure the attendance of those witnesses. Por those reasons and on those grounds, and the fact that the defendant is in jeopardy and here in court, we move the court to instruct the Government to proceed at this time or that the jury be instructed to return a verdict of not guilty.
“The Court: The gentlemen of the jury are discharged.
“Mr. MacDonald: We object, your Honor, to the discharging of the jury in this case at this time.
“The Court: The ease will go off calendar.
“Mr. MacDonald: May an objection and an exception to the order of the court discharging the jury be nqted?
“The Court: Surely. The case is off calendar. It automatically goes over to the term unless the district attorney makes some other disposition of it in the meantime.
“Mr. Gallagher: If your Honor please, in the Comero ease the defendant Richards has appeared. May I suggest that the time of his sentence be deferred until some time during this term?
“The Court: June 25th.
“The Clerk: Your Honor, were Prank Comero and Murphy present in court this morning?
“The Court: Yes, they were present.”

The district attorney contends that the jury was not impaneled on May 3, 1938, with the understanding that both sides were ready to proceed on the merjts. When the case was called for trial, the 'district attorney stated that there were three witnesses for the government, t,wo of whom had failed to make an appearance. He • suggested to the court that perhaps they could impanel the jury and have one of the investigating officers make a search and “see why they are not here.” '

Three defendants, Murphy, Richards, and Cornero, were present in court and responded to the call of their names, whereupon the district attorney stated:

“May I suggest we impanel the jury and that I have a short time to ascertain as to the witnesses?”

Thereupon thq jury' was impaneled and sworn to try the case. The court then asked if the district attorney was ready to proceed, and he stated that he was; not, and would like a short continuance to ascertain where his witnesses' were. Both lived out of the county in which the trial was held, one in San Bernardino and one in Orange county. The district attorney stated both witnesses were absolutely indispensable. The jury were temporarily excused, and, upon the motion of the district attorney, the bonds of the defendant-witnesses who had failed to appear were forfeited and a bench warrant issued. The case was continued to 10 o’clock the next morning over the objection-of the appellant. The next morning, May 4, the district attorney announced his inability to go to trial, and indicated his belief that the defendants had fled. The district attorney requested a continuance until the July calendar. The eourt denied this request, but continued the case until Tuesday, May 8, at which time the jury was discharged, as hereinbefore stated.

The district attorney, upon his own suggestion, proceeded with the impanelment of the jury on May 3 without having ascertained whether or not his witnesses were present. Nothing was done by the defendant at that time which would prevent his raising the question of former jeopardy. The fact is that, when the district attorney impaneled the jury without first ascertaining whether or not his witnesses were present, he took a chance. While their absence might have justified a continuance of the case in view of the fact that they were under bond to appear at that time and place, the question presented here is entirely different from that involved in the exercise of the sound discretion of the trial court in granting a continuance in furtherance of justice. The situation presented is simply one where the district attorney entered upon the trial of the case without sufficient evidence to convict. This does not take the case out of the rule with reference to former jeopardy. There is no difference in principle between a discovery by the district attorney immediately after the jury was impaneled that his evidence was insufficient and a discovery after he had called some or all of his witnesses. It is uniformly held that, in the absence of sufficient evidence to convict; the district attorney cannot by any act of his deprive the defendant of the benefit of the constitutional proyision prohibiting a person from being twice put in jeopardy for the same offense.Ex parte Lange, 18 Wall. (85 U. S.) 163, 21 L. Ed. 872; Const. Amend. 5; Jarl v. U. S. (C. C. A.) 19 F.(2d) 891. In U. S. v. Shoemaker, 27 Fed. Cas. 1067, No. 16279, 2 McLean, 114, this question was fully discussed, and it was held that, where the district attorney entered a nolle prosequi after the jury had been impaneled and witnesses sworn, jeopardy had attached.

In U. S. v. Watson, Fed. Cas. No. 16651, where the case was continued after the impaneling of the jury, a juror was withdrawn from the box and the jury discharged on account of the illness of the district attorney and the absence of witnesses for the prosecution. It was held that jeopardy attached and the defendant could not be retried. It is also held in Hipple v. Texas, 80 Tex. 531, 191 S. W. 1150, L. R. A. 1917D, 1141; Pizano v. State, 20 Tex. App. 139, 54 Am. Rep. 511; People v. Barrett, 2 Caines (N. Y.) 304, 2 Am. Dec. 239; State v. Richardson, 47 S. C. 166, 25 S. E. 220, 35 L. R. A. 238, and in Allen v. State, 52 Fla. 1, 41 So. 593, 120 Am. St. Rep. 188, 10 Ann. Cas. 1085, that the mere absence of a witness is insufficient to justify the court in discharging the jury under the rule of manifest necessity and that jeopardy attached.

The government, to avoid the claim of former jeopardy, relies upon the rule variously stated by textbooks and in judicial decision, to the general effect that, in ease of a most urgent necessity, the trial judge has authority, in the exercise of sound discretion, to discharge the jury, and that in a ease of such urgent necessity such action under such circumstances will not constitute former jeopardy. This is stated to be a more modern modification of the doctrine of jeopardy. 16 C. J. 250, §§ 394, 395; 12 Cyc. 269, subd. (g); 8 R. C. L. 153, § 142; U. S. v. Shoemaker, supra; Thompson v. U. S., 155 U. S. 271, 273, 15 S. Ct. 73, 74, 39 L. Ed. 146; U. S. v. Perez, 9 Wheat. 579, 580, 6 L. Ed. 165; Lovato v. New Mexico, 242 U. S. 199, 37 S. Ct. 107, 61 L. Ed. 244; Simmons v. U. S., 142 U. S. 148, 12 S. Ct. 171, 35 L. Ed. 968; Ex parte Lange, 18 Wall. 163, 21 L. Ed. 878; Blair v. White (C. C. A.) 24 F.(2d) 323. These eases are cited by the government as authority for the proposition that, whenever it is necessary for the purposes ofl justice, or in order that the ends of public justice may not be defeated, the court can discharge a jury without the consent of the defendant, in the exercise of its sound discretion, and such proceedings would not constitute former jeopardy. It is true that there is language used by the courts in the foregoing cases which, divorced from its context and applied as authority for the general proposition, would sustain the rule advocated by the government in the case at bar. We are here dealing, however, with a fundamental right of a person accused of crime, guaranteed to him by the Constitution, and such right cannot be frittered away or abridged by general rules concerning the importance of advancing public justice. An examination of the cases cited will disclose the fact that no court has gone to the extent of holding that, after the impanelment of the jury for the trial of a criminal ease, the failure of the district attorney to have present sufficient witnesses, or evidence to prove the offense charged, is an exception to the rule that the discharge of a jury after its impanelment for the trial of a criminal ease operates as a protection against a retrial of the same ease. Without undertaking to analyze or discuss all the eases cited, a statement of the situation involved in some of the decisions by the Supreme Court which axe relied upon by the government will indicate that the general expressions used by the court in such decision has reference to an entirely different, situation than that presented by the ease at bar. In Thompson v. U. S., it was discovered, after the jury had been sworn and the witnesses examined, that one of the jurors was disqualified by reason of having been a member of the grand jury that found the indictment. It will be observed that, as only eleven competent jurors had been sworn to try the case, it might be readily held that no proper jury was ever impaneled. It was in connection with this claim that the court made the statement whieh is relied upon by the government:

“As to the question raised by the plea of former jeopardy, it is sufficiently answered by citing United States v. Perez, 9 Wheat. 579 [6 L. Ed. 165]; Simmons v. United States, 142 U. S. 148, 12 S. Ct. 171 [35 L. Ed. 968] ; and Logan v. United States, 144 U. S. 263, 12 S. Ct. 617 [36 L. Ed. 420]. Those eases clearly establish the law of this court that courts of justice are invested with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated, and to order a trial by another jury; and that the defendant is not thereby twice put in jeopardy, within the meaning of the fifth amendment to the constitution of the United States.”

The first case cited in support of the foregoing rule, U. S. v. Perez, 9 Wheat. 579, 6 L. Ed. 165, is one much relied upon by the government in this case. The statement made by the court in U. S. v. Perez has been so often quoted in subsequent eases that we do not set the same out in full. It does not appear from the opinion under just what conditions the; former jury was discharged, but it was stated in Dreyer v. Ill., 187 U. S. 71, 85, 23 S. Ct. 28, 33, 47 L. Ed. 79, where, referring to U. S. v. Perez, supra, it was said:

“That was a capital ease, in whieh, without the consent of the prisoner or of the attorney of the United States, the jury, being unable to agree, were discharged by the court from giving any verdict. * * * ”

The general statement of the rule in U. S. v. Perez, supra, and Dreyer v. Ill., supra, must be construed with reference to the question there involved; namely, as to whether a defendant could be tried by another jury after the first jury had been discharged because of failure to agree upon a verdict. The sound discretion referred to in those opinions is that discretion of the trial court involved in the determination of when and after how long a deliberation the jury should be discharged, for the reason that the accused is entitled to have the jury given a reasonable time to arrive at a verdict before a mistrial should be declared and the jury discharged. In Simmons v. U. S., 142 U. S. 148, 12 S. Ct. 171, 35 L. Ed. 968, supra, citing U. S. v. Perez, supra, it was said:

“The general rule of law upon the power of the court to discharge the jury in a criminal ease before verdict was laid down by this court more than 60 years ago, .in a case presenting the question whether a man charged with a capital erime was entitled to be discharged because the jury, being unable to agree, had been discharged, without his consent, from giving any verdict upon the indictment.”

The court applied the rule announced in U. S. v. Perez, supra, to the situation where it appeared that one of the jurors had sworn falsely on his voir dire that he had no acquaintance with the defendant, whereas it later appeared that he was acquainted with the defendant, and other circumstances in connection with the discovery made it improbable that the jury could act fairly or impartially.

In Logan v. U. S., 144 U. S. 263, 12 S. Ct. 617, 628, 36 L. Ed. 429, supra, the rule announced in U. S. v. Perez, supra, was applied to a ease where a jury had been discharged after forty hours’ deliberation and had announced in open court that they were unable to agree upon a verdict. It is said in that case:

“Upon those facts, whether the discharge of the jury was manifestly necessary in order to prevent a defeat of the ends of public justice, was a question to be finally decided by the presiding judge in the sound exercise of his discretion.”

In Keerl v. Montana, 213 U. S. 135, 29 S. Ct. 469, 53 L. Ed. 734, a defendant had been tried and convicted of murder; the judgment was reversed by the Supreme Court of'Montana; upon a second trial the jury disagreed; on the third trial the defendant interposed the plea of once in jeopardy on the ground that the jury was improperly discharged at the end of the second trial. Upon the authority of the previous decision of the Supreme Court hereinabove quoted, it was held that the plea was not well taken.

In Lovato v. New Mexico, 242 U. S. 199, 37 S. Ct. 107, 61 L. Ed. 244, supra, after the jury had been impaneled and sworn, it developed that the accused had not been arraigned and had not pleaded to the indictment. The jury was dismissed temporarily, the accused was arraigned and pleaded and the same jury was again sworn and the trial resumed.. It was held under these circumstances that the procedure involved was at most an irregularity, and the accused had not twice been placed in jeopardy.

None of these cases is authority for the claim of the government in the case at bar under the circumstances presented by the record at the time the first jury was discharged. As has been stated, the position of the district attorney was no different from what it would have been if he had produced all the evidence he had the ability to produce and had discovered that such evidence was insufficient to justify a conviction. His announcement in advance of the presentation of evidence that indispensable witnesses were absent was merely an admission that he could not convict the defendant with the evidence that he was able to produce.

There is nothing in the cases cited by the government that militates against the authority of the eases we have cited, which are to the effect that mere absence of witnesses discovered after the jury is impaneled is insufficient to deprive the accused of his right to claim former jeopardy upon a subsequent trial where the jury is discharged without his consent and notwithstanding his objection. The court should have granted the motion of the defendant that the court “instruct the Government to proceed at this time, or that the jury be instructed to return a verdict of not guilty” (Bishop on Crim. Proc. vol. 1, § 1016; U. S. v. Shoemaker, 27 Fed. Cas. 167, No. 16279, 2 McLean, 114 supra; Bishop, New Crim. Proc. vol. 2, § 820; Id. § 818, or should have discharged the defendant Bishop, New Crim. Proc. vol. 2, §§ 818, 820, 830). In either event the order would be equivalent to an acquittal so far as another trial upon the same charge is concerned. Bishop Crim. Proc., vol. 2, § 818.

Judgment reversed, with instructions to the trial court to dismiss the ease and discharge the. defendant.


author: HICKENLOOPER, Circuit Judge.

text:
    GAIRING TOOL CO. v. ECLIPSE INTERCHANGEABLE COUNTERBORE CO.
    Nos. 5530, 5531.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 5, 1930.
    On Petition for Rehearing April 7, 1931.

      F. D. Hardesty, of Detroit, Mich., for appellant Gairing Tool Co.
    S. C. Barnes, of Detroit, Mich., for appellee Eclipse Co.
    Before DENISON and HICKENLOOPER, Circuit Judges, and WEST, District Judge.
   HICKENLOOPER, Circuit Judge.

The appellee complained in the court below of the infringement of its patent re-issue No. 16,817, issued December 13, 1927, upon application of John Hugo Smith, for a reaming and counterboring tool. All nine claims of the pate.nt were in issue. Claims 1 and 4 may be 'taken as typical of the two classes covered, and are printed in the margin. It will be noted that they differ only in that claim 4 (with which claim 6 is to be aligned) requires that the ribs of smaller radii shall number at least three, to pilot the cutting ribs of larger radii. The other claims read equally upon a tool which has but two ribs of the smallest radii. The District Court held claims 4 and 6 valid and infringed, and the remaining claims invalid by reason of anticipation in the prior art. Both parties appeal.

The tool covered by the patent is designed for performing, simultaneously, counterboring, reaming, and chamfering operations upon a easting already provided with a circular aperture, whereby a depressed shoulder (or shoulders) surrounding the existing hole is produced, to exact dimensions as to depth, and the walls of such hole and of the newly produced shoulders are dressed in the same ■operation.

In the prior art, before Smith, various means were used for thus counterboring and machining. Counterboring tools with a pilot and reaming or dressing tools were common, but these were used upon the turret lathe, successively, each tool performing the single operation for which it was designed. Such tools frequently had three or more ribs to provide the cutting edges. The stepped eounterbore was also old in the art and was constructed with three or more ribs to provide cutting edges of different radii, but the cutting edges of greater radii were mounted above and upon the same ribs as the edges of smaller radii. It is thus obvious that in the stepped eounterbore of the prior art, the life of the tool was limited to that period within which the grinding for ■ sharpening cutting edges would consume the shortest longitudinal distance between the different radii, for such grinding operations upon the cutting edges of greater radii would almost inevitably cut into the rib of less radius, thus deforming and destroying the dimensions of the cutting edge of lesser radius when that point was reached.

Drills or tools designed primarily for boring, but also susceptible to use for counter-boring, in which separate ribs were provided for cutting edges of different radii, such as the tool covered in the patent to Thomas, No. 805,170 (1905), the patent to Bennett, No. 1,000,067 (1911), the boring bar of Heinkel, patent No. 1,337,015 (1920), with its insertable cutters, and the tool of the Ohio Brass Company, referred to in the record as the Mansfield use, were also known and used. But in each of these tools the independent or separate ribs for each radius, never exceeded two.

We concur in the opinion of the District Judge that the evidence establishes the prior invention and public use by the Ohio Brass Company, of a tool with separate, but only two, cutting ribs for each radius, with that degree of certainty and conviction which is required to defeat the patent (Barbed Wire Patent, 143 U. S. 284, 12 S. Ct. 443, 450, 36 L. Ed. 154), and that this use was not of the abandoned experiment type, nor within the lost arts. But even apart from the Mansfield use, it would be extremely difficult to sustain the claims which read upon a tool having only two ribs for each radius, in view of the patents to Bennett and to Thomas, which 'latter patent also departed from the principle of the stepped eounterbore and was an advance in the direction of independent ribs for each radius, although this step was taken merely "by providing a clearance and oiling groove, along a major rib, which divided the rib into portions of different radii. Bennett clearly shows two separate ribs for each radius. It follows that the decree finding claims 1, 2, 3, 5, 7, 8, and 9 invalid, and dismissing the bill as to such claims, must be affirmed.

A more difficult question arises as to claims 4 and 6, as to which the defendant below contends invention is not disclosed by the mere increase in the number of separate or independent ribs with their respective cutting edges. As above stated, however, pilots were in common use with the counterboring tools of the prior art when' operated upon the turret lathe, and were considered necessary to produce work of accurate dimensions. The tool of the patent in suit provides such piloting means while at the same time the wall of the initial opening is dressed or reamed. The tool of the patent also provides additional means of radiation for the heat developed, and possesses, or retains, the much lengthened life which is due to the fact that the cutting edge of ribs of greater radii may be ground without injury to the ribs of less radii. So far as the present record discloses, the tool of claims 4 and 6 was both new and highly useful. It was immediately and enthusiastically accepted by the trade and has had great commercial success. Smith v. Goodyear Dental Vulcanite Co., 93 U. S. 486, 495, 23 L. Ed. 952. The defendant below has paid it the tribute of extremely close, if not absolute, imitation. The need existed for many years, but was not theretofore met, machinists preferring to do the separate operations by turret lathe. This is indicative of the fact that more than mere mechanical ability was required to conceive the invention, and reduce it to practice. Compare Southern Textile Machinery Co. v. United Hosiery Mills, 33 F.(2d) 862 (C. C. A. 6). As to claims 4 and 6, the references contained in the present record were all before the Patent Office, with the possible exception of the Mansfield use, and were rejected as anticipations, and this at least greatly strengthened the presumption of novelty and invention which arises from the grant of the patent. Hildreth v. Mastoras, 257 U. S. 27, 32, 42 S. Ct. 20, 66 L. Ed. 112; Smokador Mfg. Co. v. Tubular Products Co., 31 F.(2d) 255 (C. C. A. 2); Gordon Form Lathe Co. v. Walcott Machine Co., 32 F.(2d) 55 (C. C. A. 6).

We therefore conclude that invention is disclosed, that more was involved than a mere multiplication of elements, that the claims cover a true combination (compare Diamond Rubber Co. v. Consolidated Tire Co., 220 U. S. 428, 443, 31 S. Ct. 444, 55 L. Ed. 527), and not a mere aggregation of elements theretofore separately known and used in the art to perform identical functions, as in Concrete Appliances Co. v. Gomery, 269 U. S. 177, 46 S. Ct. 42, 70 L. Ed. 222, and Adams v. Galion Iron Works & Mfg. Co., 42 F.(2d) 395 (C. C. A. 6), and that the decree, finding said claims 4 and 6 valid and infringed, and the remaining claims in suit invalid, must be affirmed. No costs will be awarded either party in this court.

On Petition for Rehearing.

Appellant, defendant below, files a petition for rehearing upon the ground of newly discovered evidence of prior public use by the Dayton Engineering Laboratories Company of Dayton, Ohio. Although this petition is supported by affidavits and drawings, such evidence is not of the type which we may consider upon an appeal, it not having been presented to the court below, and it is therefore incompetent to support a petition for rehearing as such. However, we are at liberty to consider such petition for a rehearing as an application for leave to file a petition in the District Court to reopen the case, and to remand the cause to the District Court for that purpose. This action will be taken only if the newly discovered evidence is of that substantial character which seems, prima facie, to seriously threaten the validity of the patent, and if it does not appear upon the showing made that the petitioner was guilty of laches in the discovery and presentation of such evidence to the court. •

In the present instance it is also urged that the tool shown by the drawings produced could not have the piloting effect of the tool of the patent in suit, because the' cylindrical shape had not been retained upon the outside edges of the cutting ribs of smaller radii, such edges being cut away from the cylindrical on straight lines, thus destroying that snugness of fit essential to a'piloting action. We think it apparent that the tool of the alleged prior use would not have as efficient piloting action ás the patented tool, but we think it equally clear that it would have some piloting effect, and perhaps sufficient to permit it to operate as a prior use. To this extent the drawings and affidavits constitute substantial evidence seriously threatening the validity of the patent; but whether or not such evidence is in truth .sufficient to defeat the patent is primarily a question for the District Court upon a more Complete presentation of the facts.

The defense of laches is based upon the contention that counsel for appellant was for some time employed in the patent department of the General Motors Research Corporation, a subsidiary of General Motors Corporation, that the Dayton Engineering Laboratories Company was also a subsidiary of General Motors, that under these circumstances counsel should have known of the practice of the General Motors Corporation patent department of keeping complete records of all new designs of tools or machinery, and that such counsel should therefore have applied to the General Motors Corporation for possible information of prior uses. But we are not impressed that due care required that counsel broadcast inquiries to all corporations by which prior uses might possibly have been made, nor is there assurance that if inquiry had been made of the General Motors Corporation such a search for uses by subsidiary companies would have resulted as to have disclosed this particular prior use. Upon the showing made we do not think the evidence of laches sufficient to defeat the present petition, but we do not intend'to hold that a consideration of this issue is thereby foreclosed when the petition to reopen is heard by the District Court.

A reopening would be distinctly in furtherance of justice, especially since publicity has been given to the alleged prior use. If sueh evidence be sufficient to avoid a decree of injunction and accounting against other manufacturers or users, the appellant should not be the only manufacturer so enjoined. However, the application comes exceedingly late in the litigation, after trial in the District Court, and after hearing and decision in the Court of Appeals, and it is therefore discretionary with the court to impose terms. See Roemer v. Bernheim, 132 U. S. 103, 10 S. Ct. 12, 33 L. Ed. 277; Trane Co. v. Nash Engineering Co., 25 F.(2d) 267 (C. C. A. 1); Thomson-Houston Electric Co. v. Nassau Electric R. Co., 110 F. 646 (C. C., N. Y.) Barber v. Otis Motor Sales Co., 245 F. 945 (D. C., N. D. N. Y.).

It is accordingly ordered herein that the mandate be stayed, the decree of affirmance heretofore entered herein be suspended, that leave be, granted to file a petition in the District Court to reopen this cause, and that the eause be remanded to the District Court for the purpose of entertaining sueh petition; but should such petition to reopen be granted, it is further ordered that appellant pay to appellee the sum of $2,500, expenses and counsel fees, as a condition to securing sueh relief.

      1. A tool of the character described, comprising a head, and a plurality of integral radial ribs, the outer ends of which form cutting teeth, said ribs being alternately spaced and different in length and diameter and the ribs of less diameter constituting pilot teeth and projecting beyond the ends of the ribs of greater diameter and extending substantially the entire length of the head, whereby the proper relation between the cutting ends of the ribs may be maintained at all times.
      4. A tool for cutting in an already existent hole, comprising a shank terminating in a head, integral cutting ribs projecting from the sides of the head and running along the sides of the head in separate distinctly spaced ribs in sets of different radii but in overlapping relation, the sets of smaller radii running substantially to the outer end of the head and running beyond those of larger radii at the working end of the tool and numbering at least three to pilot the cutting ribs of larger radii.


author: THOMPSON, District Judge.

text:
    Ex parte ZWILLMAN.
    No. 4553.
    Circuit Court of Appeals, Third Circuit.
    Feb. 3, 1931.
    Minturn & Weinberger and Harry H. Weinberger, all of Newark, N. J., and William T. Connor and John R. K. Scott, both of Philadelphia, Pa., for petitioner.
    Joseph L. Smith, of Newark, N. J., for respondent.
    Before WOOLLEY and DAYIS, Circuit Judges, and THOMPSON, District Judge.
   THOMPSON, District Judge.

This is a petition to this court for the issuance of a writ of habeas corpus. The relator avers that he is deprived of his liberty without due process of law, in violation of the provisions of the Fourteenth Amendment to the Constitution of the United States, under the following circumstances:

He is detained and imprisoned in the Essex County Penitentiary under a commitment issued by a judge of the court of common pleas of Essex county, N. J. • Under indictments chargipg him with atrocious assault and battery and assault with intent to kill, he waived trial by jury, and was convicted on February 11, 1929. Sentence having been suspended by the trial court, he applied for a new trial, and a hearing was had upon his rule to show cause on March 12, 1929. The court held the matter under advisement until December 5, 1930, on which date the rule to show cause was discharged. On December 12, 1930, a motion in arrest of judgment was made on behalf of the relator. The motion was denied, and on the same day he was sentenced to imprisonment in the penitentiary for six months at hard labor, and to pay a fine of $1,000, the defendant to stand committed until the fine should be paid. On December 17, 1930, application was again made for a rule to show cause why a new trial should not be granted, which rule was disallowed. During the period between the relator’s conviction and the imposition of sentence on December 12,1930, he was at large upon his own recognizance.

It is alleged by the relator that the judge of the Essex county court had no authority or power to impose sentence or pronounce judgment on December 12, 1930, because that power was expressly denied him by the provisions of chapters 231 and 232 of the New Jersey Laws of 1928. The pertinent part of chapter 231 is as follows: “55. After conviction and sentence the court before which such conviction was had upon the application of the defendant for a new trial shall have power at any time within the period of six months from the date of the entry of such eonvietidn, to open and vacate the same and grant a new trial and discharge the defendant from custody upon bail, pending such new trial, and may also at any time within the period of thirty days from the date judgment is entered, but not thereafter, upon application of the defendant, or on its own motion, open and vacate the judgment entered on any conviction and resentence the defendant, as right and justice may seem to require and discharge the' defendant from custody upon bail, pending such resentenee; provided, no writ of error is pending to review such judgment.”

The pertinent part of chapter 232 is as follows:

“1. In all criminal cases where sentence is by law to be imposed, it shall be the duty of the trial court to impose sentence upon the defendant within the following periods:
“Where there has been a trial and a verdict of a jury or determination of a court sitting without a jury, it shall be the duty of the court to impose sentence within thirty days after the rendition of such verdict or determination. Where there has been a plea of guilty or other plea upon which sentence may be imposed, it shall be the duty of the court to impose such sentence within forty days after acceptance of such plea. Where a sentence has been opened and vacated, it shall be the duty of the court, except where a new trial is granted, to resentenee the defendant within ten days after the said sentence was so opened and vacated.”

Although the defendant moved for a new trial within thirty days after verdict, it is contended that the court was without power to impose sentence after the expiration of the thirty days because of the provisions of chapter 232, and that it was mandatory and obligatory upon the court to give judgment upon the relator’s application for a new trial within six months from the date of conviction because of the provisions of chapter 231. In reliance upon the construction of those statutes, the relator on December 31, 1930, applied to the Chief Justice of the Supreme Court of New Jersey for his discharge upon a writ of habeas corpus. The writ was allowed, and, after hearing on January 3, 1931, the Chief Justice denied the petition, dismissed the writ, and remanded the relator to the Essex County Penitentiary. The relator on January 7, 1931, made application to the Supreme Court of New Jersey for a writ of certiorari, which application was denied on January 9. The application for certiorari into the Supreme Court is alleged to be under pro7 visions of an act entitled “An Act for preventing the injury of illegal confinement, and better assuring the liberty of the people,” 2 Compiled Statutes 1910, p. 2639; and in particular section 53 thereof, which provides as follows: “53. In criminal cases, prisoner may appeal; in civil eases, either party. — That all proceedings commenced under this act before a justice of the supreme court, may be removed, after final decision by such justice, by certiorari into the supreme court, that is to say, if the imprisonment is for an alleged crime, and the decision is against the right of the prisoner to a discharge, the prisoner may remove such proceeding; if on civil process either party may do so; in like manner the final decision of the supreme court thereon may be removed, by writ of error, into the court of errors and appeals; provided, however, that if a discharge has been awarded, such appeal shall not stay such discharge. ..(Rev. 1877, p. 475.)”

Notwithstanding that the latter act provides a right to appeal on writ of error, the relator, claiming that he is deprived of his rights under the Fourteenth' Amendment, asks this court to hold that the action of the court ' of common pleas and the Supreme Court of New Jersey has deprived him of his liberty without due process of law. There are two well-established rules governing the court in this casé.

The first is. that, except in extraordinary circumstances, the writ of habeas corpus cannot be utilized for the purpose of proceedings in error. Harlan v. McGourin, 218 U. S. 442, 31 S. Ct. 44, 54 L. Ed. 1101, 21 Ann. Cas. 849; Matter of Gregory, 219 U. S. 210, 31 S. Ct. 143, 55 L. Ed. 184; Glasgow v. Moyer, 225 U. S. 420, 32 S. Ct. 753, 56 L. Ed. 1147; Craig v. Hecht, 263 U. S. 255, 44 S. Ct. 103, 68 L. Ed. 293. There are no exceptional circumstances in this case to take it out of that rule.

The second rule is that, in the construction of state statutes, the federal courts will adopt the construction put upon them by the state courts. Upon the application to the New Jersey Supreme Court for a writ of certiorari, that court filed a per curiam opinion (152 A. 775, 776, 9 N. J. Misc. R. 66) set out in the brief for the state of New Jersey citing an opinion by Vice Chancellor Garrison in State v. Osborne, 79 N. J. Eq. 430, 82 A. 424, where a similar statute was construed adversely to the contention of the relator, and, citing the statutes in controversy here, the court said:

“It is argued that the effect of these legislative enactments is to require the court to impose sentence within thirty days after the rendition of a verdict, and that although the defendant in this ease was -seeking to have his conviction'set aside the court must impose the sentence within the time fixed by \aw, although it was considering the matters urged on the defendant’s rule, and thereby lost its power to impose sentence. Thus, the defendant by trick could defeat the state of its remedy.
“It is inconceivable to suppose that the Legislature intended any such result. As Vice Chancellor Garrison pointed out in State v. Osborne, supra, the power to suspend sentence where the defendant does not object resides .in the courts of this state. It certainly resides in these courts where defendant, by his own motions, has delayed the imposition of sentence. Otherwise, the legislative enactment, which was obviously intended to be merely directory, would result in fugitives from justice and those who sought a new trial by rule to show cause on motions in arrest of judgment securing a release from the penalties of the law and would, by the mere passage of days, secure immunity from punishment.
“We see nothing in Sections 53, 54, or 56 of the Habeas Corpus Act, 2 Compiled Statutes, p. 2651, that makes it mandatory upon us to issue a writ of certiorari in a ease such as this. Certainly, the practice was not so understood by Vice Chancellor Garrison in State v. Osborne, and no reason has been suggested to us to the contrary.
“The writ will be denied.”

In the case of Erie R. R. Co. v. Hilt, 247 U. S. 97, 38 S. Ct. 435, 436, 62 L. Ed. 1003, where a construction was placed by this court upon a statute of New Jersey in the absence of its construction by the Court of Errors and Appeals, the highest court of the state, Mr. Justice Holmes, in an opinion reversing the judgment of this court (246 F. 800), said: “The words of the statute seem to us to require a different construction from that adopted and they have been given their full literal meaning by the Supreme Court of the State in the ease of an infant younger than the plaintiff. Barcolini v. Atlantic City & Shore R. R. Co., 82 N. J. Law, 107, 81 A. 494. In view of the importance of that tribunal in New Jersey, although not the highest Court in the State, we see no reason why it should not be followed by the Courts of the United States, even if we thought its decision'more doubtful than we do.”

While the statutes invoked here have apparently not been construed by the Court of Errors and Appeals of New Jersey, although the relator might have appealed to that court from the decision of the New Jersey Supreme Court, we, following Erie R. R. Co. v. Hilt, adopt the ruling of the latter in its construction of the statutes in question.

The petition is dismissed, and the writ of habeas corpus denied.