author: BARRETT, District Judge.

text:
    MOORE v. CHRISTIENSON S. S. CO.
    District Court, S. D. Georgia.
    Feb. 24, 1931.
    Oliver & Oliver, of Savannah, Ga., for libelant.
    Lawton & Cunningham, of Savannah, Ga., for libelee.
   BARRETT, District Judge.

• The following are, in substance, the allegations contained in the libel, filed May 24, 1930, and as amended:

On September 9,1929, the steamship Edwin Christienson, the property of libelee, through the Dixie Stevedoring Company, Stevedores, was loading freight into the hold of its vessel. A gang of laborers, of which Albert Moore, the deceased, was one, was loading freight, and by reason of certain acts of negligence on the part of the ship, which it is not necessary here to enumerate, the said Albert Moore was killed. At the time the libel was filed, there was no one entitled to recover compensation under the Longshoremen’s and Harbor Workers’ Compensation Act (33 USCA § 901 et seq.), so far as libelant knows. By implication it appears that deceased was in the employ of the Digie Stevedoring Company. The suit is brought for the benefit “of Minnie Green, a sister of the said Albert Moore, who was totally dependent upon him for a support.” It does not affirmatively appear that she was his next of kin, but it is fair to presume that that was the intention.

This libel is brought under the provisions of the Georgia statute for recovery for homicide, as amended, contained in section 4424 of the 1926 Supp. of Parks Annotated Code of Georgia.

At the time of the filing of the libel, there was no certificate from the deputy commissioner under the Longshoremen’s and Harbor • Workers’ Compensation Act, but subsequent to the filing of the libel — on January 15, 1931 — the deputy commissioner determined and entered in writing in the ease of Albert Moore the following: “That there is no person entitled under the Longshoremen’s and Harbor Workers’ Compensation Act to compensation for the death of the said Albert Moore.” On January '20, 1931, the United States Fidelity & Guaranty Company, the insurer of the Dixie Stevedoring Company, paid $1,000 under section 44 of the aforesaid act (33 USCA § 944).

Libelee maintains by appropriate pleading that .libelant has no right of action, whatever may be the negligence of the libelee, for the reason, briefly stated, that the aforesaid Longshoremen’s Act has provided exhaustively and exclusively for libel in admiralty for the benefit of longshoremen injured while on a vessel in the navigable waters of a state.

1. Prior to the adoption of said Longshoremen’s Act on March 4, 1927, title 33, section 901 et seq., USCA, the legal representative of a person who had been killed by the negligence of the shipowner had no right of action under federal law against the shipowner by reason of such negligence or against the employer by reason of any state workmen’s compensation law. Such representative did have a right to sue in personam in accordance with the local death statute. Western Fuel Co. v. Garcia, Adm’r of Souza, 257 U. S. 233, 42 S. Ct. 89, 66 L. Ed, 210; Great Lakes Dredge & Dock Co. v. Kierejewski, Adm’r, 261 U. S. 479, 43 S. Ct. 418, 67 L. Ed. 756; Lindgren, Adm’r, v. United States, 281 U. S. 38 (3), 50 S. Ct. 207, 74 L. Ed. 686. As its title indicates, the aforesaid Longshoremen’s and Harbor Workers’ Compensation Act had as its purpose to provide for a longshoreman injured while at work on a vessel within the navigable waters of the United States. Nogueira v. N. Y., N. H. & H. Railroad Co., 281 U. S. 128, 50 S. Ct. 303, 74 L. Ed. 754.

Libelant contends that while it is apparent that such act was intended to be exhaustive and exclusive so far as any right of action would exist against the employer, it did not impair or destroy any right of action that existed' as against a third party, not the employer.

An attentive examination of the act furnishes an answer to the issue thus formed. The pertinent portion as to coverage is found in section 903 (33 USCA) as follows: “(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law.” Then certain persons are excepted from its operation.

’The duty of the employer is thus stated in section 904 (33 ÜSCA) : “(a) Every employer shall be liable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, and 909 of this chapter.” .

Section 907 provides for medical services and supplies, section 908 provides in detail for compensation for the enumerated disabilities, and section 909 provides compensation for death. In this last section there is an enumeration of those who are entitled to recover under this act for death. This does not embrace a sister of the deceased.

Section 905 provides: “The liability of an employer prescribed in section 904 of this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. * * * ”

Particular attention should be given to the following provisions of section 933:

“(a) If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to the deputy commissioner in such manner as the commission may provide, to receive such compensation or to recover damages against such third person.
“(b) Acceptance of such compensation shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person, whether or not the person entitled to compensation has notified the deputy commissioner of his election.
“(c) The payment of such compensation into the fund established in section 944 of this chapter shall operate as an assignment to the employer of all right of the legal representative of the deceased (hereinafter referred to as ‘representative’) to recover damages against such third person, whether or not the representative has notified the deputy commissioner of his election.
“(d) Such employer on account of such assignment may either institute proceedings for the recovery of such damages or may compromise with such third person either without or after instituting such proceeding.”

After making certain provisions for the disposition of the amount recovered by the employer as the assignee of this right of action, after making collection, this follows: “(2) The employer shall pay any excess to the person entitled to compensation or to the representative.”

Section 944 provides as follows:

“(a) There is hereby established in the Treasury of the United States a special fund for the purpose of making payments in accordance with the provisions of subsections (f) and (g) of section 908 of this chapter. Such fund shall be administered by the commission. The Treasurer of the United States shall be the custodian of such fund, and all moneys and securities in such fund shall be held in trust by such Treasurer and shall not be money or property of the United States.
“(b) The Treasurer is authorized to disburse moneys from such fund only upon order of the commission. He shall be required to give bond in an amount to be fixed and with securities to be approved by the Secretary of the Treasury and the Comptroller General of the United States conditioned upon the faithful performance of his duty as custodian of such fund.
“(e) Payments into such fund shall be made as follows: (1) Each employer shall pay $1,000 as compensation for the death of an employee of such employer resulting from injury where the deputy commissioner determines that there is no person entitled under this chapter to compensation for such death. Fifty per centum of each such payment shall be available for the payments under subdivision (f) of section 908 of this chapter, and 50 per eentum shall be available for payments under subdivision (g) of said section.”

Subsection (f) of section 908 provides for supplementing compensation where the employee had already suffered a previous disability, and subsection (g) for maintenance of employees’ vocational rehabilitation.

The principle that where Congress had the power to deal with the 'subject, coming within the police powers of a state, and Congress did not act, the state could act, but when Congress did act it excluded all state action-, is restated in a case closely analogous to that at bar, in Lindgren v. United States, 281 U. S. 38, 50 S. Ct. 207, 74 L. Ed. 686. In that ease the Supreme Court held that as a result of the adoption of the Merchant Marine Act of 1920 (41 Stat. 988), providing for a right of suit by a seaman in personam at law for recovery of damages, there no longer existed a right of recovery of indemnity for the death of the employee under the death statute of the state. Such act provides for a right of action at law by an.employee against his employer but not against a third person.

Even if the Longshoremen’s Act did not deal with the right of a legal representative of the deceased, but merely provided for recovery under the Longshoremen’s Act for the benefit of certain named relatives and went no further, it is believed that under the principle reasserted in the Lindgren Case, supra, it would nevertheless be exhaustive of” all rights and exclusive of any rights created by the state. Such act of Congress indicated an intention on its part to take possession of that field of activity and such intention could be evidenced, though not so clearly, by omission as well as by affirmation.

Libelant assumes that the right provided by the Georgia statute is an inherent right. He forgets that it is purely statutory. He forgets that under the Georgia law until as late as 1924 the right of recovery did not exist “for the benefit of the next of kin, if dependent upon the deceased, or to whose support the deceased contributed.”

But Congress does not omit from consideration the existence of a right of action for the benefit of the kin of the deceased other than those enumerated in the act. In section 905 there is this comprehensive language as to whom the exclusive features of this act apply: “* * * to the employeee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. * *’ *” But that is not all. After providing in section 933 that “the person entitled to. such compensation” may elect to recover damages from such third person, or if the employee accepts compensation this shall operate as ’an assignment to the employer of such right to recover damages, and in the event that the deputy commissioner shall determine that “there is no person entitled under this chapter” to such compensation the employer shall pay into the fund provided in section 944 $1,000, it is then provided that this shall operate as an assignment to the employer of all right to recover damages of such third person. This exhausts the field. There surely can be no other persons entitled to recover than those enumerated in the act and those who are not enumerated in the act. In the former class it is provided that upon receipt of compensation by the employee,‘and in the latter class by payment by the employer of $1,000 to the fund provided by section 944, there shall be an assignment to the employer of such right of action. There is nothing left for the state death statute to operate on, Affirmatively does Congress exclude every element of such state death statute.

The fact that the determination by the deputy commissioner that no one under the statute is entitled to compensation was not made until subsequent to the filing of the libel, and the fact that the $1,000 was not paid until subsequent to that date, is immaterial. Even if neither of these acts had been performed no right of action would exist in this libelant.

Certain special exceptions have been filed and some of them seem to be meritorious; but it is unnecessary to determine them at this time. The result of the conclusion above indicated is that the libel must be dismissed.

Let a decree be presented in accordance herewith.


source: Caselaw Access Project

author: NETERBR, District Judge.

license: Public Domain

text:
    UNITED STATES v. BOYNTON et al.
    No 775.
    District Court, W. D. Washington, N. D.
    May 8, 1931.
    Anthony Savage, U. S. Atty., and Hamlet Dodd, Asst. U. S. Atty., both of Seattle, Wash.
    Baldrey & Kenyon, of Bellingham, Wash., for defendants.
   NETERBR, District Judge.

The United States seeks to quiet title to certain lands claimed by the defendant, purchased by him from the estate of Tsumtilano, an Indian, to whom the land was allotted December 31, 1884.

In 1855, Governor Stevens of Washington territory, and Superintendent of Indian Affairs, made a treaty with the chiefs, headmen, delegates, etc., allied Indians. Article 2 thereof provided that “tracts of land should be set apart and, as far as necessary, surveyed and marked out for the exclusive use of said Indians.” In 1873 the land was surveyed by the United States to high-water mark, and on November 22, 1873, President Grant, by proclamation, ordered the tracts in issue, with other lands, to low-water mark, to be withdrawn from sale and set'apart for the occupation and use of the Indians.

The land within the exterior boundaries had been devoted to the exclusive use of the allied tribes under the treaty, and lot 1, in issue, containing 16.7 acres, was allotted to Tsumtilano, an Indian, for which a restricted fee patent was issued December 31, 1884. On the 10th of April, 1928, the allottee being deceased, the land was sold after being advertised, to the defendant, he being the highest bidder. The transfer to this land was signed by the heirs of Tsumtilano and approved by the Department of the Interior.

It is the contention of the plaintiff that no lines had been run, and that the preliminary line shown on, the map. and by the field notes extended' only to the high-water mark, and that the defendant’s claim to any of the lands within the boundaries fixed by the survey below the present high-water mark is untenable.

The testimony shows conclusively that shore land has been washed away, and that the high-water mark extends further inland than it did in 1873, or in 1883, when the survey was made for allotment purposes. The ehainman for the surveyor testified that the survey was made along and above the water, and the presumption is that the public officer performed his duty; and when article 2 of the treaty is considered, and the act with relation to the allotment, the testimony of all the witnesses who have lived in and about, and been along the trail over the property, and the act of the Interior Department in making reservation in the deed to defendant for road right of way from county road running across the “portage,” the conclusion is inevitable that the survey is in harmony with the treaty, and did truly portray the high-water line in 1873 and 1883.

This case is distinguished from the case where the land is transferred to the meander line, and by encroachment of the water the line is moved; but, where the boundary is fixed by definite survey, the aetion of the water does not change the fixed line.

This case has nothing in common with United States v. Stotts, 49 F. (2d) 619, (this court, filed October 25, 1930), in which the court said: “The right of- the Indians to the lands of the reservation was a common right, and the allotment of a part of the reservation to some of the Indians dcfes not destroy the common right to the enjoyment of the unallotted portion for any use to which it was adapted.”

The right of the Indians to the unallotted portion of land is not changed, nor is the common right and the use to which it is adapted, and the boundary of the land in issue is fixed by the survey (not in the Stotts Case), which cannot be collaterally attacked. United States v. Cain-Bonness (D. C.) 215 F. 212; See, also, Cragin v. Powell, 128 U. S. 691, 9 S. Ct. 203, 32 L. Ed. 566; Russell v. Maxwell Land Co., 158 U. S. 253, 15 S. Ct. 827, 39 L. Ed. 971; Horne v. Smith, 159 U. S. 41, 15 S. Ct. 988, 40 L. Ed. 68; United States v. Lane, 260 U. S. 662, 43 S. Ct. 236, 67 L. Ed. 448.

Decree for defendant.


author: NETERER, District Judge.

text:
    UNITED STATES v. LEVY et al.
    No. 40094.
    District Court, W. D. Washington, N. D.
    May 5, 1931.
    Anthony Savage, U. S. Atty., and Cameron Sherwood, Asst. U. S. Atty., both of Seattle, Wash.
    H. Sylvester Garvin, of Seattle, Wash., for defendant Monis.
   NETERER, District Judge.

The defendant Morris, convicted of conspiracy to use the mails to defraud, was sentenced to 13 months in the federal penitentiary at McNeil’s Island and to the payment of $500 fine; and conviction was affirmed on appeal. He now stands at the threshhold of the penitentiary. The United States attorney has moved the court for commitment ■ — passport to entry. The defendant requests that he be placed on probation and execution of sentence suspended. The government objects to the court’s jurisdiction to grant probation after the term.

Strong sentiment is expressed by eminent men of California, prominent in the state and national affairs. I might say, parenthetically, that I have a letter from the Governor of the state, as a citizen, and likewise have a night telegram from a member of Congress from San Francisco; I have also letters from men engaged in industrial affairs; likewise from persons engaged in organized social activities and state-wide, and beyond, reputation testifying to personal acquaintance and exemplary conduct of the defendant since conviction and his employment and support of his wife, a sémi-invalid, and one child, and that his prospect for continued service is good. , ''

There is not a shadow of a doubt of guilt.' The defendant was represented at trial by able lawyers, and every contention that could be made in' his behalf was ably and efficiently made, and, while it may be said “nothing emboldens sin as much as mercy” (Shakespeare), we also read: “He that is without sin among you, let him east the first stone' * * * ” John 8:7. “Lenity will operate with greater force in some instances than rigor.” Washington, Moral Maxims.

The defendant Morris, a young man just on the threshhold of life, and two others/ were charged .with conspiracy; all were convicted. The jury in its verdict recommended mercy to the defendant and Harris. The' scheme, I am convinced, was not conceived' by the defendant but by another with a criminal record, who did not appeal from the judgment and sentence of two and'a half, yearn in the penitentiary and $1,000 fine;’ but the defendant Morris and his associate in the appeal carried forward the plan in very efficient manner. Neither the defendant Morris nor his associate have a previous' criminal record. The associate, I understand, has since died. ■ ■

The probation system is predicated upon the theory that it is easier to reclaim an unhardened young first offender without commitment to prison than after his commitment. While the use of the mails to carry forward a scheme to defraud is of the most insidious, since it insinuates itself upon the ignorant, innocent, and unwary, and steals away their judgment, “ere they are aware,” by depicting in colorful language and by false statement large, speedy, financial gains, and takes from those who can ill afford the little frugal saving which has been made for the support of the wife and little children in the event of interrupted earning opportunity or power, incarceration will not return the money wrongfully taken, nor prevent others from engaging in the like enterprise. “There is no virtue so truly great and godlike. as justice.” Addison. “The greatest attribute of Heaven is mercy, and ’tis the crown of justice, and the glory, where it will hill with right and save with pity.”

The Supreme Court in United States v. Murray, 275 U. S. 347, 358, 48 S. Ct. 146, 149, 72 L. Ed. 309, said: “The great desideratum was the giving to young and new violators of law a chance to reform and to escape the contaminating influence of association with hardened or veteran criminals in the beginning of the imprisonment. Experience had shown that there was a real locus poenitentiae between the conviction and certainty of punishment^ on the one hand, and the actual imprisonment and public disgrace of incarceration and evil association, on the other. * * * The avoidance of imprisonment-at time of sentence was therefore the period to which the advocates of a Probation Act always directed their urgency. Probation was not sought to shorten the term. Probation is the attempted saving of a man who has taken one wrong step, and whom the judge thinks to be a brand who can be plucked from the burning at the time of the imposition of the sentence. ( The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it. Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872. Such a limit for probation is a natural one to achieve its end.” See, also, United States v. Benz, 282 U. S. 304, 51 S. Ct. 113, 75 L. Ed. -. White v. Burke (C. C. A.) 43 F.(2d) 329.

While it is after the term of final judgment, the remittitur from the Court of Appeals has just been mitered, and the defendant Morris is at the bar of the court for commitment, and, service of sentence not haying been entered upon, the power of the ■court is not ended. I believe the defendant “to be a brand who may be plucked from the burning.” In-this case I believe justice will be best served by suspending execution and admitting defendant to probation for two years, and such further time as may hereafter be determined, on condition that the fine imposed be paid, and that he abstain from evil association, support his wife and child, and in all things demean himself as a law-abiding and patriotic citizen, and report to the probation officer of this court at least once a month as to his employment and conduct, and to the probation officer of Los Angeles, his present residence.

An order may be presented.


author: BYERS, District Judge.

text:
    THE MARGARET MURRAY. THE OVERBROOK.
    No. A-6917.
    District Court, E. D. New York.
    March 20, 1931.
    Eoley & Martin, of New York City, for libellant.
    Burlingham, Veeder, Eearey, Clark & Hupper, of New York City, for claimant.
   BYERS, District Judge.

The libellant’s barge Margaret Murray was taken light from Gowarius on January 25, 1924, by the tug Brinto-n to the Pennsylvania stake boat OX, and there held with other light barges to be made up into a tow. This was around 4:00 P. M., although the hour is not clearly fixed.

About 9:30 that night, the tow was assembled, of eleven barges in three tiers, four, four and three, the Murray being the starboard boat, second tier.

The claimant’s tug Overbrook took the tow in charge, bound for South Amboy, and the libel was filed to recover damages said to have been sustained by the Murray, caused by-pounding in the tow, during the passage.

The report of survey held two weeks later indicates the following damage: Top log badly gouged; ditto first strake below; ditto fourth strake below. The foregoing and the port rail required renewal as stated in the report. New planks were needed, and side required searching and caulking in wake of damage.

The foregoing is consistent with the nature of the libellant’s claim.

The weather conditions prevailing at the time the tow was removed from the stake boat are asserted to have been such that it was negligence on the part of the tug to undertake the movement at all.

The testimony of the tug’s captain is, that, when the Murray was at the stake boat, she was in shelter. At that time, he says there was a flood tide, and weather fair. The wind was from the west, shifting to northwest, and the average wind velocity at the Whitehall building during the hours involved in making ready and accomplishing the trip to South Amboy was shown to be as follows:

8 P. M. to 9 P. M. -westerly wind.......48 to 42 miles 9 P. M. to 10 P. M. westerly wind......50 “ 74 “ 10 P. M. to 11 P. M. westerly wind......50 “ 58 « 11 P. M. to 12 M. northwesterly wind... 60 “ 69 “ 12»M. to 1 A. M. northwesterly wind... 46 “ 53 “

The testimony for the libellant is that five hours were consumed in the passage (ordinarily requiring an hour or so), and for the claimant, two hours. The average of these is seen to be three and one-half hours, which would fix the hour of arrival at about 1:00 A. M. on January 26th.

Also the average wind velocity at the stake boat is estimated at from 10% to 15% below the above figures.

Storm warnings had been hoisted the day previous and apparently continued. On the 25th, there was no lack of visibility, and there was no snow or rain.

The bargee testified that he discovered the damage on January 26th, and that the fenders on the port side had been lost, and all the damage was confined to that side of the barge, there being none on the bow or stem. That he replaced fenders twice on the port side, during the passage to the Kills, and, when so doing, observed damage to the port rail; also that no damage had been suffered before or after January 25th and prior to the. survey.

The captain of the Overbrook insisted that, with a light tow, and the wind in the quarter which has been shown, the maneuver was proper, but that, with a loaded tow, or easterly wind, the contrary would have been the fact. It will be seen that the depth of water, to starboard, on the way to the Kills, tended to diminish, and that the effect of the westerly and northwesterly wind of the intensity shown was to raise a sea which would affect the barges in the weather berth. Indeed, the captain of the tug admits that there were white-caps from the shoals near Black Tom, but no considerable seas.

It is concluded that he assumed more than the ordinary hazard involved in a towage operation, when he took this barge from what he admits was a position of shelter, under the conditions here shown; that his decision would fall within the reasons for condemnation laid down in The Clarence L. Blakeslee (C. C. A.) 243 F. 365, and was not unlike a similar display of negligence discussed in The Salutation (D. C.) 239 F. 421. The Jumbo, 1926 A. M. C. 1705, is to be distinguished, because there the barge was found to be unseaworthy, and there is no such evidence attempted here to be shown.

The libellant may take the usual decree, with costs.

If the foregoing be deemed an insufficient compliance with Admiralty Rule 46% (28 USCA § 723), findings and conclusions may be settled on notice.


author: HOLMES, District Judge.

text:
    HENRY v. WEST et al.
    District Court, N. D. Mississippi, Delta Division.
    May 2, 1931.

      Maynard, Fitzgerald & Venable, of Clarksdale, Miss., for plaintiff.
    Green, Green & Jackson, of Jackson, Miss., for defendants.
   HOLMES, District Judge.

The plaintiff filed this action in tort in the state court seeking damages for the alleged wrongful death of his intestate. On petition of one of the defendants, a nonresident, alleging a fraudulent joinder and separable controversy, the case was duly removed to this court.- A motion has been made by the plaintiff to remand it to the state court, to the hearing of which in vacation the defendants object, and the sole question necessary to be determined is whether it may be heard and decided by the judge at this time. There is no rule of court on the subject.

There are three divisions in the district, in each of which two terms of court are held annually at regular times fixed by statute. When the business of each division is concluded, the court is adjourned until court in due course of law. In nearly all of the other districts in the United States, outside of Mississippi, the courts are kept open at all times, from term to term, either by adjourning orders under section 12 of the Judicial Code (28 USCA § 16) or by the actual presence of a judge.

The Conformity Statute does not help toward a solution in favor of the judge’s power so to act, because, under the state practice, the courts of law cannot dispose .of any business in vacation except by consent, as well as for the reason that the federal statutes on the subject seem, by their language, to answer the question in the negative.

Section 28 of the Judicial Code (28 USCA § 71) provides that: “Whenever any cause shall be removed from any State court into any district court.of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed.”

Other sections of that abt indicate that Congress had in mind a distinction between the court and the judge, and a recognition of periods of vacations between terms. For instance, section 58 of the Judicial Code (28 USCA § 119) provides that: “Any civil cause, at law or in equity, may, on written stipulation of the parties or of their attorneys of record signed and filed with the papers in the case, in vacation or in term, and on the written order of the judge signed and filed in the case in vacation or on the order of the court duly entered of record in term, be transferred to the court of any other division of the same district, without regard to the residence of the defendants, for trial.”

Section 9 (28 USCA § 13) provides that courts of equity and admiralty shall .be deemed always open for certain purposes, and, under the Bankruptcy Act, courts of bankruptcy are always open for all purposes, but no similar provision exists with reference to courts of law.

However, section 918 of the Revised Statutes (section 731, title 28, USCA) gives the District Courts power to “make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and making up of judgments by default, and other matters in vacation, and otherwise [to] regulate their own practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceedings.”

Whether under this section the court during a term could make a rule providing for the hearing of motions to remand in vacation is not necessary to be decided, but it would seem that such a rule would tend to the advancement of justice and the prevention of delays in proceedings.

An order remanding a cause which has been removed is a judicial act of singular solemnity and binding effect, in that it is required to be “immediately carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed.”

I am therefore of the opinion that, in the absence of any rule of court on the subject promulgated during the term, the District Judge is without power to enter an order in vacation remanding an action at law to the state court from whence it was removed.

I am requested, in the alternative, to call a special term of court to dispose of the motion, but this is impracticable, as a special term, under section 11 of the Judicial Code (28 USCA § 15), must be held in the district in which the cause is pending, and I am now engaged in the disposition of business in the Southern District, and shall be for some time.


author: NETERER, District Judge

text:
    UNION OIL CO. OF CALIFORNIA v. SPRADLEY.
    No. 20479.
    District Court, W. D, Washington, N. D.
    April 24, 1931.
    Plaintiff commenced action in the state court of Skagit county against the defendant on open account for $1,043.47, for sale of gasoline and oil, etc. In due course defendant appeared, admitted the sale to him, and by affirmative defense and cross-complaint prays judgment against plaintiff for $20,000, in subtanee, for refusal to sell him gasoline, ete., 'and maliciously preventing the defendant from purchasing petroleum products from other wholesale dealers in and about Anacortes, the place of business of both parties, and that by the wrongful and malicious conduct of the plaintiff, defendant was compelled to cease business; that he had built up a large and profitable business of the value of $20,000, which was utterly destroyed.
    Demand for jury trial by the defendant, and the answer and cross-complaint, were served February 2, 1931. February 14, following, petition for removal of the cause to this court was made and served upon the defendant, together with notice of filing petition and bond, and on setting forth, in substance, that an action was prosecuted by the plaintiff in the state court for the sum of $1,043.47, and that the defendant has, in his answer, set up a cross-complaint in the nature of an independent action arising out of unrelated facts and has prayed for relief against it in the sum of $20,000 less $1,043.47, alleges diversity of citizenship; that the defendant is, in effect, the plaintiff under a cross-complaint, and a resident of the state of Washington ; that suit is of a civil nature and the amount sought by the cross-complaint is in excess of $3,000, and order of removal entered.
    Defendant has moved to remand the cause for the reason that plaintiff voluntarily commenced the action in the state court; second, that it did not file petition for removal at or before the time when by the law and practice of the state court it was required to plead or answer to its cross-complaint.
    Stratton & Kane, of Seattle, Wash., for plaintiff.
    Stephen V. Carey, of Seattle, Wash., for defendant.
   NETERER, District Judge

(after stating the facts as above).

Section 280, Bern. Comp. Stat. of Washington, volume 1, provides: “The court shall establish the rules prescribing the time in which pleadings subsequent to the complaint shall be filed.”

Buie 3 of the General Buies of the Superior Court of the State of Washington, pursuant to section 280, supra, and article 4, § 24, of the Constitution of the State of Washington, provides: “(c) Unless a different time is fixed by statute or special rule or order of court,, a party against whom a pleading is filed must respond thereto within three days from the time the same is served upon him, or service waived.” No different time is fixed by statute.

I think it is obvious that there is only one action; the amount claimed in the complaint is not within the jurisdiction of this court. If the cross-complaint is properly in the case, placing in issue the jurisdictional amount, removal'to this court was not within the required time; and if improperly pleaded, it is not in the case, and cannot confer jurisdiction on this court as an independent action. This court has no power to divide the cause, keeping tort in this jurisdiction and remanding contract to the state court, or to enter judgment on the contract.

The motion to remand is granted.


author: CANT, District Judge.

text:
    Ex parte DOVE.
    District Court, D. Minnesota, Fifth Division.
    Aug. 14, 1925.
    Washhum, Bailey & Mitchell, of Duluth, Minn., for petitioner.
    Clifford L. Hilton, Atty. Gen., and Rollin L. Smith, Asst. Atty. Gen., for respondent.
   CANT, District Judge.

The petitioner has been arrested for fishing within that part of Rainy Lake which lies within the state of Minnesota, contrary to the law of that state, and, at the time of the hearing herein, he was in the custody of one of the game wardens of said state. He claims that, hy reason of treaty relations between the United States and Great Britain, such law is invalid and that he is wrongfully deprived of his liberty.

The Treaty of July 1, 1908, between the United States of America and Great Britain, relating to fisheries in the waters contiguous to the United States and the Dominion of Canada, provided for the appointment of an International Fisheries Commission. Under such treaty it was provided further that such commission should prepare a system of uniform and common international regulations and restrictions for the preservation and protection of the food fishes in the waters referred to. It was provided that such regulations and restrictions should cover a wide field, including provision for closed seasons, limitations as to the character, size, and manner of use of nets, engines, gear, apparatus, and other appliances used in catching fish in said waters. Further provisions were to the effect that the two governments should put-in operation and enforce hy legislative and executive action the regulations, restrictions, and provisions which should be agreed upon by the said International Fisheries Commission, and that the date when such regulations, restrictions, and provisions should go into effect should be fixed by concurrent proclamation made by the proper executive officers of the respective governments.

. The International Fisheries Commission was duly appointed pursuant to the provisions of said treaty, but no regulations, restrictions, or provisions of any kind have ever been finally agreed upon by said commission or proclaimed by the respective governments involved.

It cannot be doubted that this is a matter concerning which the state may enact and enforce legislation until such time as the federal authorities shall act in reference thereto by legislation or treaty. Until the regulations and restrictions contemplated by the treaty shall be agreed upon and until the date of their being put into operation shall be proclaimed, the treaty is of no effect in displacing or superseding the authority of the State laws. Until that time the treaty is a dead letter, except that it gives authority for the appointment of the commission, and for such attémpts at framing and agreeing upon regulations and restrictions as the commission may make. The true meaning and effect of the treaty is that, when its terms are complied with, and not until then, the laws of the state relating to the same subject-matter shall be abrogated. In such matters it is important that there be legislative supervision and. control, and that there be regulations and restrictions looking to the propagation and preservation of the food fishes. Otherwise the fish might soon be destroyed. If the subject-matter is covered by state regulation, that regulation should not be stricken down or interfered with until a real conflict be-" tween state and federal authority, or between state laws and the treaty, shall arise. No such situation has developed here.

The petitioner therefore should be held subject to the provisions of the state laws, and the writ should be discharged.


author: WOOLSEY, District Judge.

text:
    In re FREED BROS. STYLE COAT HOUSE, Inc.
    District Court, S. D. New York.
    May 13, 1931.
    C. Edward Benoit, of New York City, for trustee.
    Louis Jersawit and Trowbridge & Fox, all of New York City, for petitioners.
   WOOLSEY, District Judge.

The petition to review is dismissed.

I. Assuming, but not deciding, that under General Order XXVII the petitioner had a right to bring this petition to an interlocutory order of a referee, the relief sought should not be granted, for I am asked to set aside a discretionary order made by the referee in which he refused to grant a continuance in a turnover proceeding sought on the ground of the pendency of an indictment against the respondents in that proceeding.

The referee’s order was purely discretionary, and there was not any abuse of discretion shown. Cf. Goldsby v. United States, 160 U. S. 70, 72, 16 S. Ct. 216, 40 L. Ed. 343; Isaacs v. United States, 159 U. S. 487, 489,16 S. Ct. 51, 40 L. Ed. 229; Goldfarb v. Keener, 263 F. 357, 359 (C. C. A. 2); In re Horowitz, 250 F. 106, 107 (C. C. A. 2); In re Rosenfeld-Goldman Co., 228 F. 921, 923 (D. C. Mass.).

II. The respondents to the turnover proceeding are not forced in any way to take the stand to testify. They may let the proceeding go by default. If the respondents to the turnover proceeding are embarrassed by their situation, it is merely, as Mr. Justice Holmes said in a slightly different connection, In the Matter of Harris, 221 U. S. 274, at page 279, 31 S. Ct. 557, 558, 55 L. Ed. 732, “one of the misfortunes of bankruptcy if it follows crime.”

III. It may be observed that a petition to review an interlocutory order of a referee made during the pendency of such a proceeding as this is not to be encouraged in a busy court. Cf. In re Graboyes, 228 F. 574, 575 (D. C. E. D. Penn.); In re Rosenfeld-Goldman Co. (D. C.) 228 F. 921, 923.

Settle order on one day’s notice.


author: BOURQUIN, District Judge.

text:
    In re NOSEN.
    No. 17116.
    District Court, D. Washington.
    May 11, 1931.
   BOURQUIN, District Judge.

This applicant for citizenship arrived and has lived in the United States since 1923. He testifies he has a wife and two female children 7 and 14 years old in Norway; that before his departure he and they resided there in the home (one lot in the suburbs of a small town) of her father, a pensioner in enjoyment of 1,200 crowns or about $324 per year; that his family continues to reside with the father, and the wife has. no income; that he came hither because “times hard” in Norway, and as a fisherman -he makes $1,500 yearly; that the wife refuses to come hither though he sent her means; and that because thereof'he has not sent his family anything for their support since 1929, though before he had.

Admission to citizenship is, as it ought to be, jealously guarded, and granted only to him worthy to b.ecome one in the great partnership which makes up the nation. The prime consideration always i§ the nation’s welfare and not the applicant’s, which is wholly secondary. Admission is not the alien’s right, but a privilege and favor extended to him if he measures up to the standard by the law created. The principal of the qualifications prescribed is that for five years immediately preceding his application he “has behaved as a man of good moral character.” That is, he must be of good moral character, which behavior may evidence. See Bonner’s Case (D. C.) 279 F. 789. Lacking this, he is rejected, however accurately he may be schooled and remember the answers in the “Guide to American Citizenship”; and lacking this, as here he does, the applicant is rejected.

Whether due to desire or by desire, he is the father of two children yet helpless infants. By every law, natural, human, moral, and divine, he is obligated to protect, support, and care for them. Nothing excuses failure to discharge this obligation, and no man who evades it is of good moral character. Although the husband may choose the place of family residence and may legally withhold support from the wife who fails to abide by it, her delinquency affords no justification for his failure to support the children she retains elsewhere. Her sin must not by him be visited on them.

Application denied.


author: BOÜRQUIN, District-Judge.

text:
    SEATTLE TITLE TRUST CO. v. UNITED STATES, and three other cases.
    Nos. 20122, 20104, 20119, 20146.
    District Court, W. D. Washington, N. D.
    May 8, 1931.
    George E. Mathieu, of Seattle, Wash., for Seattle Title Trust Co. and others.
    Henry Ivers, of Seattle, Wash., for Patrick Burma Cotter.
    Tom De Wolfe, Asst. U. S. Dist. Atty., of Seattle, Wash., for the United States.
   BOÜRQUIN, District-Judge.

In these actions to recover upon war risk insurance policies, plaintiffs present motions . for inspection of Veterans’ Bureau records in advance of and to prepare for trial. The motions are granted.

For although in 1929 the writer denied a like motion in Dennis’ Case in reliance upon what seemed to be the greater weight of authority, and also Carpenter v. Winn, 221 U. S. 533, 31 S. Ct. 683, 55 L. Ed. 842, subsequently in Massey’s Case (D. C.) 46 F.(2d) 78, Neterer, J., held otherwise. And not only to avoid innovations in matters of practise by a visiting judge, but also persuaded that Judge Neterer’s decision clearly distinguishes the statutes involved, is logical in reasoning, sound in principle, and lays down the better and just rule, this order conforms thereto.


author: GRAHAM, Presiding Judge.

text:
    REUSCH v. FISCHER.
    Patent Appeal No. 2728.
    Court of Customs and Patent Appeals.
    May 25, 1931.

      Stryker & Stryker, of St. Paid, Minn. (Cushman, Bryant & Darby, of Washington, D. C., of counsel), for appellant.
    A. C. Paul, of Minneapolis, Minn., for appellee.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   GRAHAM, Presiding Judge.

The United States Patent Office declared an interference between patent No. 1,576,548, issued to the appellant’s decedent, Jacob J. Reuseh, and a pending application of the appellee, Howard L. Fischer, serial No. 659,-966, whieh was filed August 29, 1923. The Reuseh patent was issued March 16, 1926, on an application filed August 4, 1924.

The subject-matter of the interference is set forth in one count, which is as follows:

“In apparatus of the class described, the combination with a casing adapted to contain stencil plates, of a gauge bar adapted to be held in rigid spaced relation with the front of said casing to engage a card to be printed, said bar having a surface adapted to constitute a guide for a stencil in use, and means on said bar adapted to facilitate centering cards beneath said bar.”

Both parties took evidence. The Examiner of Interferences awarded priority of the subject-matter to Reuseh, the junior party, and, in so doing, filed an enlightening and well-considered decision. He based his conclusion, in principal part, on the fiduciary relations which he found to exist between Fischer and Reuseh as attorney and client. On appeal to the Board of Appeals, the Examiner’s decision was reversed; the Board finding that there was no unethical conduct or breach of trust on the part of Fischer, that he was the original inventor of the subject-matter of the interference, and awarding priority to him.

The matter now comes to us on the issue of originality. Appellant contends that Reuseh conceived the invention in issue, employed Fischer as his attorney to prosecute an application for a patent thereon, and made a full disclosure to him thereof; that Fischer thereafter appropriated this idea and filed an application for a patent thereon contrary to the terms of his employment, and contrary to the ethical rules which should have controlled his actions as the attorney for Reuseh; that he (Reuseh) was the inventor of the particular subject-matter of the controversy, and conceived and disclosed the same fully before Fischer .entered the field; that he proceeded with due diligence after Fischer’s entry; and that appellant is justly entitled to priority herein.

On the other hand, Fischer maintains that he never was consulted by Reuseh about the subject-matter of the invention here; that he conceived the same before he conferred with Reuseh on the other matters hereinafter mentioned ; that 'Reuseh never disclosed the subject-matter of the invention here in issue to him at any time; and that he was the inventor thereof, filed his application in due course, and is entitled to priority.

The decision of the issue herein depends largely upon the facts presented by the record, and involves, to a large degree, the question of the veracity of the various witnesses who were called. On this point we do not have the concurring decisions of the tribunals of the Patent Office, with the presumption which arises therefrom.

Reuseh testified that he was employed by the Louis F. Dow Company as advertising and sales promotion manager in 1919, and at that time used what is described in the record as the Pokorny stenciling apparatus in his work; that on July 13, 1922, having attracted the attention of some of the stockholders in the National Sign & Stencil Company, he was employed as the general manager of that company. This was a small business, and it was marketing, at that time, the said Pokorny stenciling apparatus, consisting of a wooden ease of a horizontal type, with a drawer for holding stencils, and compartments for brushes, ink, etc., on the top, which was at that time being manufactured by the Wallin Manufacturing Company; that shortly after his employment by the National Sign & Stencil Company he conceived the invention in issue, and disclosed it to various employees of the company; that he applied to Wallin, who was then making the Pokorny outfits, and was referred to Fischer as a patent attorney, and that he disclosed fully to Fischer in the fall of 1922, the invention here in issue, furnishing him with drawings on or about March 29,1923, which drawings, although requested, were never returned to him, and full information about how he desired the application to be made and the samples to be constructed; that from that time until the fall of 1923, he was continually attempting to> get Fischer to proceed, without success; that he was told by Fischer, in the fall of 1923, that he (Fischer) had filed the application in his own name, and then vigorously protected against this; that he also, in a director’s meeting of the National Sign & Stencil Company, in October of the same year, protested against this action, insisting upon the invention being credited to him; that, when he first went into the National Sign & Stencil Company, the members of the Hickey family were not active in its management and paid very little attention to its business'; that, after his difficulties with Fischer began in the fall of 1923, Fischer came in constant contact with members of the Hickey family and established close relations with them; that at about the same time there began to be friction between Reuseh and the members of the Hickey family; that, when he first took charge of the National Sign & Stencil Company’s business, the cabinets were being made by Fischer’s Company, the Wallin Manufacturing Company, of which the party Fischer was then president, but that afterwards, because of his belief that manufacturing could not be carried out fast enough at this place, he directed the manufacture of the cabinets to be done elsewhere; that on September 8, 1923, Fischer was elected a director of the National Sign & Stencil Company, and that, on March 17, 1924, at an adjourned meeting of said company held at the office of Carl Cummins, an attorney of St. Paul, Reuseh was discharged as general manager; that, at the time he employed Fischer, Fischer gave no indication that he was working upon any patents in connection with a stenciling device or outfit; and that he had no idea Fischer claimed anything of the kind until after the application was filed and the altercation occurred between the parties, as hereinbefore referred to.

The party, Fischer, testified, in substance, that he was admitted to practice before the Patent Office, but was not a member of the general bar; that he conceived the invention in issue about January 1, 1923, and that he thereafter disclosed the same to Reuseh. He admits he was employed by Reuseh on the recommendation of Wallin, but he states that this employment only included the preparation of an abstract of title of the Pokorny patent, a copyright matter, and an application which Reuseh was making for a patent on improvements in tlie Pokorny device, and that Reuseh never at any time disclosed to him the invention here in issue; that his relations with Reuseh had always been amicable, and that he had had no difficulty with him at any time in the office of the National Sign & Stencil Company, or otherwise, about the invention here in issue; that he is the inventor of the device in question; and that, after he conceived it, he took the matter up with the members of the Hickey family and discussed it with them on numerous occasions, and finally, when the application was filed, assigned it to Agnes Hickey, who, at that time, paid him his fee for the same, $159. He further testified that he had never known the members of the Hickey family until the matter of this patent arose, and that he was elected a director of that company upon receipt of the transfer of one share of stock from Agnes Hickey, that Reuseh never protested at any meeting of the directors of the National Sign & Stencil Company about the patent being taken out in Fischer’s name, and that no fiduciary relation existed between himself and Reuseh, as attorney and client, as to the particular matter here in controversy.

In attempting to arrive at the truth of this matter, the court finds it necessary to rely upon facts and circumstances detailed by witnesses not parties in interest. On the part of Reuseh, these witnesses are: Paul Cyr, a foreman in the shipping department of the National Sign & Stencil Company during the time Mr. Reuseh was manager thereof;. Sister Barbara Anne, formerly Miss Marie Mitseh, now a nun, but employed as a stenographer in the office of the National Sign & Stencil Company during Mr. Reuseh’s incumbency as manager; Frank H. Tuttle,, a bookkeeper and auditor employed at the National Sign & Stencil Company during Mr. Reuseb’s incumbency; Raymond D. Spell-man, wbo bad office space in tbe office of tbe National Sign & Stencil Company during the same period; and Alexander S. T. Lagaard, a former law partner of tbe appellee, Fischer.

Fiscber relies principally for corroboration on the members of tbe Hickey family, wbo were tbe principal stockholders and owners of tbe National Sign & Stencil Company. These consisted of George B. Hickey, Miss Agnes Hickey, and Mrs. Mae C. McClure. Tbe business of this company bad been owned by James R. Hickey, wbo bad died on November 16, 1919, leaving Agnes Hickey bis devisee as to tbe business and assets of the company. Tbe Hickey family, at tbe time Reuscb was employed in this business, owned tbe major portion of tbe stock of this company; some amount being outstanding in tbe bands of tbe original owners of tbe Pokorny patent. When Reuseh was made manager, be was also created a director and given one share of stock.

Tbe witness Cyr stated that be began work for the* National Sign & Stencil Company in September, 1922, and that, within a few months after be began work there, Reuscb described an improvement in tbe Pokorny outfit which be intended to have made, and which was a vertical cabinet with a drop door and with its arrangement such as is the subject-matter of tbe controversy here. The witness fixes tbe time definitely as tbe winter of 1922 and 1923 when this disclosure was made to him. At that time, be says, and on numerous other occasions, Reuscb made rough pencil sketches which be showed to tbe witness, embodying tbe idea of tbe invention.

Tbe witness Sister Barbara Anne began to work for tbe National Sign & Stencil Company in August, 1922. She states that within three or four months after she began to work there she saw Mr. Fischer at tbe place talking to Reuscb, and on numerous occasions after that, in that year, these parties conversed in tbe office of tbe National Sign & Stencil Company where she could observe them, she being at that time'a stenographer, with a desk in tbe office where it was possible for her to observe what occurred. She recalls that she beard a controversy between Reuscb and Fiscber some , time in tbe latter part of tbe year 1923, at tbe office, in which Fiscber stated that be bad signed a certain “patent,” and in which Reuscb was objecting vigorously and insisting that be should sign it, and that be (Reuscb) was tbe inventor of the device. She fully corroborates, by her testimony, Reuseb’s statement of this conversation. Sister Barbara Anne also gathered from tbe conversation, according to her testimony, that tbe device in question was the device tbe subject of controversy here, of tbe “suitcase” type. Soon afterw Reuscb was discharged from tbe National Sign & Stencil Company, Sister Barbara Anne> also severed her relations with this company, because of difficulties which" occurred between her and Mrs.' McClure, one of the stockholders.

Tbe witness Tuttle testified that be began to work for the National Sign & Stencil Company in August, 1922, and that about tbe 1st of September of that year Reuscb explained an improvement in stencil cabinets to him which was substantially the device in controversy here. He states that numerous conversations occurred between him and Reuscb as they went back and forth to and from tbe office, as well as in the office and at other places, and that Reuscb made rough drawings when he was explaining tbe same to tbe witness. This witness identifies fully tbe device which was finally perfected, and a sample of which was afterwards made and brought to the office of tbe National Sign & Stencil Company. He also relates that Reuseh informed him of his employment of Fiscber to obtain a patent on this invention, and that Reuscb afterward told him, with considerable excitement, that Fiscber was attempting to obtain tbe patent in his own name. This witness on tbe stand made a sketch from his memory of tbe disclosures made to him by Reuseh in 1922, and which sketch is in evidence and plainly indicates tbe basic ideas of tbe invention in controversy.

Tbe witness Spellman testified that be bad a desk in tbe office of tbe National Sign & Stencil Company in such a position that be could see what occurred therein, and that be frequently saw Fischer there in conference with Reuscb in 1922 and 1923. He stated that be became aware of a bitter feeling between Reuscb and Fiscber by bearing them argue excitedly about some matter; that one conversation in tbe fall of 1923 concerned the way Fiscber was conducting Reuseb’s patent business; that be saw these two parties going over tbe plans, and at one time took a model to Fischer’s office; that one time Reuscb told tbe witness, in explanation of these controversies with Fischer, that be was to have received certain papers, which be never bad received from Fiscber. Tbe witness also stated that, within six months' after he moved into the office of the National Sign & Stencil Company, which was in July, 1922, Reuseh told him of his new invention in stenciling outfits which he had invented, and a model of which he had then ordered. The witness, on cross-examination, fixed the time of the conversation in which Reuseh was claiming the right to sign the patent application at approximately September or October, 1923.

Alexander S. T. Lagaard testified that at the time of the employment of Fischer by Reuseh, he (Lagaard) was in partnership with Fiseher, which partnership afterwards became a corporation. This association continued from January, 1921, to June 1, 1924. The witness testified that in the early part of 1923, not later than April, Fiseher showed him a drawing of a stenciling apparatus which was of the suitease type, and was approximately the invention in question here, and asked him for assistance in planning a metal clamp to be used upon this device. The witness testified that Fischer never claimed to him that -he invented this device other than the clamp just referred to, but did state that he had received instructions from Reuseh about the invention. Fiseher indicated to him at first that the feelings between himself and Reuseh were friendly, but afterwards demonstrated, by his actions, that they had become unfriendly, and in some of the conversations of a later date stated that Reuseh had not been dealing fairly with the National Sign & Stencil Company. He testified that his firm obtained a copyright for Reuseh on certain stencils and did some other patent work prior to the work on the particular invention here in controversy. He further states that, after the time when difficulties were arising between Fiseher and Reuseh, Fischer and he discussed the question as to whether the invention here in issue was to go to the National Sign & Stencil Company or to Reuseh individually, but that Fischer prepared the application and had the drawings made in his own name, without protest on the part of the witness Lagaard.

The various members of the Hickey family, stockholders of the National Sign & Stencil Company, corroborate Fiseher to this extent, that they all testify that Reuseh at no time made any claims or statements to them as to his being the inventor of the device in question.

One or two other circumstances appear from the evidence to have some bearing on the issue here involved. When Reuseh was first appointed general manager of the National Sign & Stencil Company, he placed an order with Fischer’s company, the Wallin Manufacturing Company, for the making of the Pokorny cabinets, which Reusch’s company was then selling. Some time during the summer of 1923, Reuseh transferred the business of making these cabinets to a cabinetmaker by the name of Schmidt, with whom apparently this business was conducted until Reusch’s discharge, when the business was replaced with Fischer’s company.

It also appears that the application which Reuseh filed for his improvements upon the Pokorny cabinet, and which duly went to-patent, was promptly prosecuted by Fiseher, was assigned by Reuseh to the National Sign & Stencil Company, and was paid for out of" the treasury of the National Sign & Stencil Company. The Fiseher application for the new model cabinet, however, was assigned to Agnes Hickey and paid for by her personal check.

It also appears that, during Reuseh’s incumbency as general manager, approximately $8,000 was taken out of the funds of the National Sign & Stencil Company and paid to original stockholders in the Pokorny Company for stock owned by them, and that this stock was assigned, not to the National Sign & Stencil Company, but to Agnes Hickey personally. Difficulty arose between Reuseh and the members of the Hickey family because of Reuseh’s insistence that this amount be carried as a charge on the books of the company against Agnes Hickey.

The fiduciary relations between an attorney and his client are of such a nature that the courts have, universally, adhered to the rule that such relation will be closely scrutinized, to the end that the attorney may take no personal advantage at the expense of his client as a .result of the confidential relations existing between them. No trust is more complete than that placed by the client with his attorney, and no trust should be more carefully and faithfully observed. The relation of attorney and client, admittedly, existed between Fiseher and Reuseh in patent matters obviously akin to that here in issue. This being true, the burden 'devolved upon Fischer to prove the utmost good faith upon his part, and to establish clearly that he, and not Reuseh, 'was the inventor of the subject-matter of this interference. If, after considering all the facts, there remains any doubt as to the originality of the invention, such doubt should be resolved in favor of the client. Goodrum v. Clement, 51 App. D. C. 184, 277 F. 586, 279 F. 304; Overholt v. Matthews, 48 App. D. C. 482; Baumgardner v. Hudson, 51 App. D. C. 150, 277 F. 552.

Not only is this true, but if, during such employment, the attorney or other person employed makes valuable discoveries ancillary to the plan disclosed by the employer, such suggested improvements are the property of the employer and not of the employee. Agawam Co. v. Jordan, 7 Wall. 583, 602, 19 L. Ed. 177; Milton v. Kingsley, 7 App. D. C. 531; Fritz v. Hawn, 37 F. (2d) 430, 17 C. C. P. A. 796.

We are satisfied, from the facts appearing from this record, that, applying the legal principles just stated, Reuseh should be considered as the inventor of the device in issue. All the incidental facts in the record lead the mind to the conclusion that he suggested the basic idea thereof to Fischer. Reuseh disclosed this idea and his invention fully to employees of his company before he conferred with Fischer. On the contrary, there is no evidence in the record tp even indicate that Fischer had this conception before he met and conferred with Reuseh. The early pleasant, and afterwards strained, relations between Fischer and Reuseh, denied by Fischer, but fully substantiated by other credible witnesses, corroborate Reuseh. Fischer’s statements to his law partner, Lagaard, in which he was debating whether Reuseh or the National Sign & Stencil Company should obtain the patent, are illuminating.

Other facts also reflect light on the relations of the parties and upon Fischer’s procedure. When Fischer first interviewed Reuseh, Reuseh was on friendly relations with the stockholders of his company, who were inactive in the business; Fischer’s Wallin Company was making the cabinets and whatever profit arose from this business; Fischer had no business relations with any of the Hickey family. However, when Fischer first began to plan to file an application in his own name, he became quite intimate with the Hickey family. He assigned his application to Agnes Hickey. Thereupon there was great activity in the company affairs by the members of the Hickey family. The company elected Fischer a director; it discharged Reuseh; it again placed its cabinet business with Fischer’s company. Reuseh did not ascertain until long after the Fischer application had been made that such action had been taken. The assignment being to Agnes Hickey direct, no record of the same would come to the notice of Reuseh, as general manager of the National Sign & Stencil Company.

Every one of these circumstances seems to indicate a carefully carried out plan to secure the benefit of Reuseh’s invention to Fischer and the members of the Hickey family. The most charitable thing that may be said, in view of the facts appearing upon this record, is that the testimony entirely fails to support the burden east upon the pajrty Fischer herein.

The decision of the Board of Appeals is reversed,-and priority will be awarded to the appellant.

Reversed.


author: BLAND, Associate Judge.

text:
    In re SCHIBSTED.
    Patent Appeal No. 2751.
    Court of Customs and Patent Appeals.
    May 27, 1931.
    Denison & Thompson, of Syracuse, N. Y. (Archibald Cox, of New York City, and T. K. Bryant, of Washington, D. C., of counsel), for appellant.
    T. A. Hostetler, of Washington, D. C., (Howard S.-Miller, of Washington, D. C., of counsel), for the Commissioner of Patents.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   BLAND, Associate Judge.

This is an ex parte appeal from the decision of the Board of Appeals of the United States Patent Office, affirming in part and reversing in part the decision of the examiner, in relation to claims for a patent, seven of which claims were for the process of packing milk powder, and three of which were for the article. The article claims are for an airtight container having within it milk powder, which container contains no more oxygen per pound than a certain percentage, and contains inert gas in certain quantities.

Claims 17 and 25 are illustrative and follow :

“17. The process of packing milk powder comprising reducing the free or uneombined oxygen content to an amount not substantially greater than five cubic centimeters for each pound of powder, sealing the powder in an air-tight container charged with a gas which does not contain free or uneombined oxygen and without permitting increase of the uncombined oxygen content substantially above five cubic centimeters for each pound of powder.”
“25. An article of commerce consisting of an air-tight container, milk powder within the container having a free or uneombined oxygen content of not substantially more than five eubie centimeters for each pound of powder, and a gas which does not contain free or uneombined oxygen within the container at a pressure less than atmospheric pressure.”

The applicant elaims that in the prior art it was known that milk powder, when put up in vacuum — that is, when certain portions of free oxygen were withdrawn — would become rancid and undesirable after a certain length of time, and especially was this true of the powder containing fats, and that this was due to the presence of oxygen; that he discovered that if the oxygen content of the can could be reduced to below five eubie centimeters for each pound of powder, it would keep in its original condition indefinitely. He recognized that it was old to withdraw a portion of the air from the can and insert an inert gas, but points out that in the prior art no method had been proposed whereby the free oxygen could be reduced in the degree indicated. His method of accomplishing this desirable result is to first withdraw from the container, which contains the milk powder, as much free oxygen as may be withdrawn. He states that there will be left in the can from seven to eight cubic centimeters of oxygen per pound of powder, which is styled adhered oxygen, that is to say, that it adheres in and around the particles of milk powder, and that the particular function of his process is to further remove the adhered oxygen. After the first operation of withdrawing the oxygen from the can, an inert gas such as carbon dioxide is then inserted in the can through an appropriate opening, and a very small hole or opening is left in the container, which opening is not larger than .0002 of a square inch for each pound of powder, and the opening preferably, should be as small, as .00006 of a square inch. The can is then left standing, sealed except as to the above-mentioned small opening, for as long as twenty hours, during which’ time the adhered or contained free or uneombined oxygen is freely given up by the powder. Again the vacuum pump is applied and a vacuum as nearly perfect as is possible is made to remove the adhered oxygen content of the powder. Additional inert gas is then inserted' under a pressure of nine or ten) pounds. The small opening is then sealed.

A large portion of the remaining adhered oxygen is absorbed by the gas, and applicant states that the product after such operation contains less than five cubic centimeters of oxygen per pound of powder, and that under this process it is possible to reduce it to three and five-tenths eubie centimeters per pound of powder.

The examiner rejected the elaims upon the following references:

Franks, 1,232,271, July 3, 1917.
Heath et al., 1,406,380, February 14, 1922.
Boberg et al. (Brit.), 17,077, of 1913.

And with respect to the references and applicant’s method said: “ * * * The same acts in the same relation would necessarily produce the same result and it does not appear that applicant’s elaims or disclosure indicate either a new concept or new and unobvious procedural details.”

Upon appeal to the Board of -Appeals,, method claims 21 and 22 were allowed for the reason that claimv 22 contained the provision for “holding the kettle as charged for a period approximating twenty hours,” and-claim 21 specified a “considerable period.” All the other claims were rejected by the board.

Appellant here argues that he is clearly entitled, not only to the allowance of the-remainder of his process elaims, but also to the allowance of his article elaims, inasmuch as he has produced a new article of manufacture not before known to commerce.

We agree with the Board of Appeals that the allowed claims cover all of appellant’s patentable contribution to the art as. is indicated by the references cited.

All products of all processes are not patentable. In re Marden, 47 F.(2d) 957, 18 C. C. P. A. -; In re Marden and Rich, 47 F.(2d) 958, 18 C. C. P. A.-; American Fruit Growers, Inc., v. Brogdex Co., 51 S. Ct. 328, 75 L. Ed.-.

One may obtain a patent on a method of cleaning an- article, but the cleaned article by reason of its unusual and new cleaned condition is not necessarily patentable, since cleaning is a question of degree.

It is clear, in the case at bar, that appellant’s article is different from articles long known to the art, only in the degree of the absence of oxygen. In the first two above-cited eases, it was contended that appellant was entitled to a patent upon the articles respectively, pure uranium and pure venadium, because they did not exist prior to the application of appellant’s method. We held that the article was not patentable. To the same effect is .the recent United States Supreme Court case, American Fruit Growers, Inc.) v. Brogdex Co., supra, in which the court held invalid a patent claim for an orange treated with borax.

We agree with the decision of the Board of Appeals, and it is affirmed.

Affirmed.


author: HATFIELD, Associate Judge.

text:
    In re PRESCOTT et al.
    Patent Appeal No. 2744.
    Court of Customs and Patent Appeals.
    May 25, 1931.
    Sydney I. Prescott, of New York City (George S. Hastings, of New York City, of counsel), for appellants.
    T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   HATFIELD, Associate Judge.

This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the decision of the Primary Examiner rejecting claims 6,12,13, 44, 45, 46, 48, 49, and 52 in appellants’ application for an alleged invention relating to improvements in automobile wheels.

Claims 6 and 46 are illustrative. They reád:

“6. In a wheel of the type described, the combination with a hub, of a body mounted on said hub, a tire rim removably mounted on said body, a series of long-threaded nut and thrust screw devices obliquely arranged in said body and engaging said rim, and means for retaining the screws within the nuts when in rim releasing position.”
“46. A standardizing wheel of the type described, comprising a hub, a roadside-demountable body having a central aperture permitting free movement by hand of said body in and out of position over said hub, body fastening means a part of which is immovable with respect to said hub for positioning and supporting and a part of which is movable with respect thereto for securing said body in position, a roadside-demountable quick-detachable tire rim, and means for fastening said rim to said body,' whereby a tire may be removed either alone or with the'rim as a unit or with the rim and body as a unit.”

The referenees are: Gammeter,' 1,088,656, Feb. 24, 1914; Baker, 1,320,999, Nov. 4, 1919; Miehelin, 1,376,390, Apr. 26, 1921; Swain, 1,400,837, Dec. 20,1921; Allison, 1,-428,741, Sept. 12,1922; Williams, 1,441,769, Jan. 9, 1923; Pugh et al. (Br.) 3,082, Feb. 5, 1914.

Claims 6,13, 44, and 45 relate particularly to means for securing the rim in position, and were rejected on the patent to Gammeter, in view of the British patent to Pugh et al. With reference to these claims, the Board of Appeals said that the patent to Gammeter disclosed “a threaded bolt mounted in an integral nut in the felloe rim for holding a tire rim in place.” Continuing the Board said:

“These claims call for means -for preventing the screw bolts from becoming detached from the nuts. The patent to Pugh et al. discloses a split ring similar to appellants’ for preventing a bolt in a wheel construction from falling out and while the combination is not precisely the same as that called for in the claims under consideration, it is our view that there would be no invention in applying a split ring of the type shown in Pugh et al. to the screw bolt of Gammeter to retain it in- the nut.”

We think the Board’s decision is obviously correct, and that the matter needs no further discussion.

The subject-matter defined in claims 46 and 48, with the exception of one feature thereof describing a part of the “body fastening means” as “immovable with respect to said hub for positioning and supporting,” was fully defined in original claim 28 in appellants’ application, and was held by the Court of Appeals of the District of Columbia to be patentable. Following that decision, claim 28 was involved in an interference with the patentee, Swain, on an application for a reissue of the Swain patent No. 1,400,837, issued December 20, 1921. Priority of invention having been awarded Swain, appellants canceled the claims involved in the interference, and substituted therefor claims 46, 48, 49, and 52. With reference to these claims, the Board of Appeals said:

“Claims 46 to 52, inclusive, are rejected as not involving invention over the issue of an interference in which appellants were involved with the party Swain, the application of Swain having eventuated into patent 1,-400,837. The broad issue of that interference which appellants lost related to a disc wheel detachable at the hub and with a detachable, quick-detachable tire rim. All of the claims rejected on Swain specify that the body fastening means is immovable with respect, to the hub. Appellants hope to distinguish over Swain by specifying that the bolts which pass through the hub flange of Swain are immovable with respect thereto. We agree with the examiner that this is not a patentable distinction, especially in view of the art cited by him showing bolts immovably connected with hubs. * * * Claim 49, in addition to limitations of claim 46, includes reference to the sleeves on the nuts similar to the limitations in amended claims 42 and 43 previously discussed. We do not consider, however, that the limitation is sufficiently clear in this claim to warrant its allowance over Swain. * * * Claim 52; in addition to limitations of claim 46, includes the inclined nuts for holding the rim in position but we do not consider this limitation patentable over Gammeter for reasons similar to thosé given in the discussion of other claims rejected upon this patent.”

It is argued by counsel for appellants that appellants’ combination is an improvement over the prior art, and that beneficial results have been obtained thereby. It is suggested that more emphasis be given to the new results obtained by appellants than to the means employed to obtain them.

However, we should not be unmindful of the rule that patents should be issued for invention, and not for mere improvements obvious to the skilled mechanic, regardless of their commercial value.

We are of opinion that claims 46, 48, 49', and 52 are not patentable over the references of record, for the reasons stated in. the decisions of the Patent Office tribunals.

The decision of the Board of Appeals is-affirmed.

Affirmed.


text:
    DE FOREST v. OWENS.
    Patent Appeal No. 2748.
    Court of Customs and Patent Appeals.
    May 27, 1931.
    Darby & Darby, of New- York City (Samuel E. Darby, Jr., of New York City, and Chas. M. Thomas and Francis D. Thomas, both of Washington, D. C., of counsel), for appellant.
    Hoguet & Neary, of New York City (Ramsay Hoguet and Daniel L. Morris, both of New York City, of counsel), for appellee.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   BLAND, Associate Judge.

This is an interference ease, appealed from the decision of the Board of Appeals of She United States Patent Office. The Board affirmed the decision of the Examiner of Interferences, awarding priority of invention to appellee. ' The invention is expressed, and sufficiently described, for the purposes of this interference, in the following copnt:

“A printing machine for printing positives from negatives having sound and motion picture records displaced thereon, comprising means for printing the sound record from the negative onto the positive, and instrumentalities arranged between the said means and mechanism for predetermining the displacement between the sound and picture records on the positive.”

Both parties claim their invention arose from the construction of the same full-size commercial printer. Both parties rely upon this device for their reduction to practice, and the case is one purely of originality.

While the count involves three elements, the last phrase of the count contains the essential part of the invention and the matter about which the controversy is concerned, ■and reads as follows:

“ * * * And instrumentalities arranged between the said means and mechanism for predetermining the displacement between the sound and picture records on the positive.”

The determination of the issue depends almost entirely on the credibility to be given to the testimony of certain witnesses, since the testimony as a whole is hopelessly conflicting. For the purposes of this case, the evidence need not be set out in detail, since the outstanding facts, we think, point to the correct decision of the ease.

The appellant, Dr. Lee De Forest, an internationally known scientist, inventor, and pioneer in the radio and talking picture industry, is the junior party, having filed his application for patent at a date subsequent to the filing of the Owens application. It is admitted that Owens filed his application for patent while in Dr. De Forest’s employ and without the knowledge of De Forest. It is therefore earnestly, contended by De Forest that Owens seeks to appropriate to his own use an invention which De Forest disclosed to him, and which he (Owens) was employed to help perfect.

It is admitted that De Forest, on returning from Germany, where he had been engaged in the study of, and experimentation in, sound photography, brought back with him a German motion picture printing machine which did not involve .the subject-matter of the invention, but which he proposed, by reconstruction, to utilize for the purpose of printing films for use in American projection machines such as the Simplex, where the distance between the picture opening and the sound opening was different from that of. the corresponding openings of the camera. It was necessary to displace the openings through which the picture and sound records were to be printed, a.nd to so arrange the mechanism that the film, could be moved intermittently past the opening through which the pictures were to be printed, and continuously past the opening through which the sound was to be printed.

Owens was an experienced camera man, but had no experience with sound on film photographs. Soon after De Forest arrived in this country, he made inquiries for an experienced motion picture camera man. Owens was recommended and employed. Soon after Owens’ employment, the German printer arrived and was opened in the presence of Owens. De Forest states that he showed this continuous printer to Owens and explained what he had done with his first printer in New York and later in Berlin, and just what he proposed to do with this printer; that at once Owens understood what had’ to be done; that the printer was taken over to Jersey City, where one Kaufman, a skilled mechanic, who had been in the employ of De Forest since 1913, was to build the machine. De Forest states that, in October, 1922, he fully instructed Kaufman and made a pencil sketch showing the nature of the machine to be constructed. De Forrest says that Owens did not go to the Jersey City plant until some time thereafter.

The drawing, known as De Forest Exhibit 1, which is found on page 13 in a notebook, is the most important part of the evidence, and is relied upon for corroboration by both parties. Kaufman says no one made any notes in that book except De Forest. Whether he meant the original sketch or the original sketch together with the notations made on the same, some of whieh were admittedly made later, he did not explain. De Forest admits, after stating that the drawing was his, that certain words added to the drawing were not his, and that the characters representing the takeup rolls were not his. Kaufman very positively states that he received no instructions from Owens as to the manner of building the maehine, but that the idea was disclosed to him by De Forest.

Owens testified, in effect, that he conceived the notion of how to bring about displacement between the sound and picture records immediately when De Forest showed him the German printer. When asked how he conceived this invention so quickly upon seeing the maehine, he stated that anybody that was in the moving picture business would have done practically the same thing. His further testimony is. to the effeet that whatever Kaufman did in the way of building the maehine was done under his direction, and that he (Owens), not De Forest, made De Forest Exhibit 1.

That he (Owens) made various suggestions relating to the perfection of the maehine is not denied, but it is expressly denied by appellant that any such suggested refinements changed in any way the fundamental principles whieh had been suggested by De Forest.

De Forest, Owens,'and Kaufman are the only three witnesses having first-hand knowledge of the building of the machine and the events that led up to it.

Owens claims to be supported by the witness Munker. Hunker was an expert draftsman. He testified that, in his opinion, De Forest’s Exhibit 1, the drawing whieh both parties claim to have made, was made by Owens. He first stated that De Forest, in making the -representation of pulley .wheels and similar circular parts, used a circle, and that he always began the circle below a line drawn horizontally through the center of the circle, while Owens invariably began his circles toward the top. On eross-examination he was shown circles whieh De Forest drew in Exhibit 1 and elsewhere, which did not start in the bottom half of the circle, but toward the top. There were also shown to him, in Owens’ own book, drawings made by Owens, the circles of whieh started from toward the bottom.

Another witness, James Koehl, a patent attorney, whom Owens consulted while working for De Forest, testified for Owens, and among other things said:

“XQ.42. Insofar as your knowledge is concerned, do you know what Mr. Owens’ employment was with Dr. De Forest? What he was doing? A. He described to me that it was simply a camera man one employed to." take pictures.
“XQ.43. Do you mean a man to go out and take pictures? A. I would say that it would be a man who would take pictures according to certain settings. I don’t know whether he would go out and take pictures or not. I think most of it was done in a sort of improvised studio.
“XQ.44. Do you know, of your own knowledge, whether or not Mr. Owens was working for Mr. De Forest in .connection with synchronization of sound and motion, or motion picture film? A. Only through the information obtained from Mr. Owens and that is that he was not so employed.
“XQ.45. What was he doing? A. He-was a camera man, just employed to take pictures. He had nothing to do with the synchronizing of sound with the picture of the object he was taking. He simply ground out the pictures after the setting was had.”

It is conceded that, if Owens made the-invention, he made it while in the employ of' De Forest and with the use of De Forest’s material. It is also admitted that Owens, while in De Forest’s employ, not only suggested that De Forest apply for a patent on this phase of the invention, but that he also' should apply for a patent on the method of taking sound records in soundproof rooms. Owens’ notebooks show that fact to be true. It is conceded that at no time until after the controversy herein arose had Owens ever denied that De Forest was the inventor and entitled to the invention. When asked why he suggested to De Forest that he apply for a patent if he, Owens, was the inventor, he replied: “I did not get next to myself until some time after.” When De Forest was asked why he did not file his application sooner, he stated that he did not have the remotest idea that one of his employees would be claiming the idea as his own invention and filing an application for a patent for the same.

The Board of Appeals gave Kaufman’s testimony little weight, chiefly on account of the faet that Kaufman showed a somewhat servile loyalty to his employer, and denied that any one had added anything to the drawing, Exhibit 1, when it was admitted by De Forest that others had added something to the drawing. It must be conceded that Kaufman’s testimony is not as valuable as it would be if it were not for these considerations, but, under tbe circumstances,- we do not think his testimony, as a whole, can be totally rejected.

It seems to us that the testimony of Munker should be given little, if any, weight, in view of the fact that he is not an expert in handwriting or any kindred art, and for the further reason that the basis for his conclusion as to why he thought that Owens made the drawing in controversy almost completely disappeared on cross-examination.

In deciding the case, the Board of Appeals said:

“The ease is one of originality rather than of strict priority of invention as both parties are relying upon the embodiment of the invention in the same sketch and a machine built in accordance therewith. The burden of proof is upon DeForest the junior party.”

It is probable that the above view of the law applied to the case has led the Board of Appeals into error. This is a ease of originality, and there is no race for diligence in getting into the Patent Office. The sole question is whether Owens or De Forest was the inventor. Standard Cartridge Co. et al. v. Peters Cartridge Co. (C. C. A.) 77 F. 630, 644.

At the time this invention was made, and we think made by De Forest, the relation of employer and employee clearly existed between De Forest and Owens. Appellee’s counsel, in argument here, stated that Owens was employed to take pictures for commercial purposes, and that he was not employed for the purpose of being helpful in connection with the improvement of a machine for printing sound pictures. The record as a whole does not support this position.

Fortunately, the law, where the relation of employer and employee exists, is fairly well settled in the decided eases. In Fritz v. Hawn, 37 F.(2d) 430, 433, 17 C. C. P. A. 796, where a situation quite similar to that at bar existed, this court said:

“We are of opinion that the Board of Appeals did not give sufficient considera^ tion to this phase of the subject. It is argued that Hawn was not employed to help design cabinets. Nevertheless the nature of his duties were such as to bring him in contact 'with the details of such work. He was obliged to compute, for his employer, the cost and efficiency of each detail of construction. He was called upon to make estimates and drawings for such construction and perform these functions constantly. We therefore hold that the relationship of employer and employee did exist between Fritz and Hawn in this work.”

We there quoted with approval the decision in Larson v. Crowther, 55 App. D. C. 58, 1 F.(2d) 761, 767, in which the Court of Appeals of the District of Columbia, in an opinion by Smith, J., late of this court, relative to facts quite similar to those at bar, said:

“But, however that may be, Crowther was assigned to the duty of making apparatus required by Larson for his experiments, and that relation between the parties imposed upon Crowther, notwithstanding his status as senior party, the burden of proving by competent credible evidence that the conception definitely evolved by those experiments was his, and not that of his employer. Winslow v. Austin, 14 App. D. C. 137, 143, 144.”

It seems to be the attitude of appellee that, if neither party has offered convincing proof, priority must be awarded to Owens. We disagreed with this contention in Fritz v. Hawn, supra. When an employee claims to have' made an invention, which is within the scope of his employment, and made while so employed during the working hours for which he is receiving pay, his claim that he, and not the employer, independently and separately made the invention, is to be examined with great care, and will not be accepted, unless the proof clearly shows that he, and not the employer, was the first inventor of the subject-matter. If he is to be regarded as the inventor, he must show that the invention was not made in pursuance to the guidance and instructions of the employer. Fritz v. Hawn, supra; Larson v. Crowther, supra; Miller v. Kelley, 18 App. D. C. 163; Gallagher v. Hastings, 21 App. D. C. 88; Laughlin v. Burry, 50 App. D. C. 273, 270 F. 1013. See, also, Standard Cartridge Co. et al. v. Peters Cartridge Co., supra.

The temptation of the employee to gain knowledge while working under the skilled guidance of another and then to seek to capitalize such knowledge by betraying his trust and seeking a patent for himself is always great and too frequently occurs. The likelihood of such conduct on the part of an employee is .always increased where the knowledge of the subjeet-matter is confined to only a few people. To place no burden of proof upon the employee and the whole burden upon the employer, under sueh circumstances as are at bar, would be inequitable, and would have the tendency toward increasing the likelihood of bad faith on me part of the employee -rather than to encourage loyalty and honest service.

The evidence brought forward by De Forest and all the surrounding facts and circumstances show that he was the inventor. It does not seem probable, under the circumstances shown, that Owens would have been the inventor instead of De Forest. See Myers v. Myers, 55 App. D. C. 281, 4 F.(2d) 948.

We do not mean to hold that an employee may not, during the term of his employment, make an invention to which he may be justly entitled, but it must be clear that it is his invention. His contractual relation may give the benefits of the invention to his employer, but in the case at bar both parties deny any such contractual relation.

In Miller v. Kelley, supra, a- case quite analogous to the instant one, the Court of Appeals of the District of Columbia said:

“This doctrine the Commissioner has cited as applicable in the present ease; and he adds:
“ ‘No sufficient proof has been presented in the present ease to overcome the natural presumption from the relations of the parties; but, on the contrary, the evidence as a whole tends to support that presumption.’
“We think that this conclusion is fully warranted by the record, and that the doctrine announced is a fair and just exposition of the law, and is decisive of this case.
“We do not mean, of course, to be understood as holding or sanctioning the idea that the employee’s intelligence is all for the time being given over to the employer, and that the employee retains no independent power of invention. On the contrary, the employee is to be protected from the rapacity of the employer, as much as the employer from the dishonesty of the employee; and if the employee makes an invention wholly independent of the employer, it is the law that the invention belongs to him who actually makes it, and that it does not inure to the benefit of the employer. What we hold is that when in the course of experiment by an employer with an invention a device is suggested for its improvement which in itself would reach the dignity of independent invention, and a dispute arises between employer and employee as to its conception, the presumption is justly in favor of the employer, and it is incumbent on the employee to overcome that presumption by ' satisfactory proof.”

We' conclude that priority of invention should have been awarded to the appellant herein, and the decision of the Board of Appeals is reversed.

Reversed.