author: NEVIN, District Judge.

text:
    PROSPERITY CO., Inc., v. AMERICAN LAUNDRY MACHINERY CO.
    No. 628.
    District Court, S. D. Ohio, W. D.
    Oct. 20, 1933.
    Wood & Wood, of Cincinnati, Ohio (Wm. R. Wood, of Cincinnati, Ohio, and Bohleber & Ledbetter, J. C. Ledbetter, and Francis H. Fassett, all of New York City, of counsel), for plaintiff.
    Allen & Allen, of Cincinnati, Ohio (Marston Allen and Peck, Shaffer & Williams, all of Cincinnati, Ohio, and Brockett, Hyde, Higley & Meyer and Elbert L. Hyde, all of Cleveland, Ohio, of counsel), for defendant.
   NEVIN, District Judge.

This cause is now before the court on a motion filed on behalf of the defendant, the American Laundry Machinery Company, wherein the defendant prays the court for leave to file a counterclaim (attached to the motion) against the plaintiff, and, in the event this prayer is granted, that the court order that United Shoe Machinery Corporation be brought in as a party defendant in this proceeding.

On February 14, 1930, defendant, the American Laundry Machinery Company, filed in this court a document entitled Answer and Counterclaim, setting forth its answer to the bill of complaint herein, and also an alleged counterclaim against the-plaintiff. The bill of complaint was filed on October 9, 1929. In the bill of complaint defendant is charged with infringement of letters patent to Davis, No. 1,609,273, and to McDermott, No. 1,587,078, in both of which patents plaintiff alleges it is vested with the entire right, title, and interest. In its counterclaim as originally filed, and having reference to paragraphs 22 et seq. of the original answer and counterclaim, and particularly paragraph 24 thereof, defendant makes certain allegations with regard to Bates patent No. 1,565,248, granted to United Shoe Machinery Corporation (due assignment of his interest, etc., having been made by Bates to said corporation), -alleging, among other things, that it (this defendant) “became by an agreement and license duly executed and recorded in the United States Patent Office and now is vested with the exclusive right to this Bates Patent No. 1,565,248 with respect to the laundry or garment pressing fields, together with the right to sue for and recover damages and profits for any and all infringements thereof.” Subsequent to the filing of the answer and counterclaim just referred to, to wit, on January 6, 1933, defendant herein filed a motion for an order to join herein as a party defendant United Sho'e Machinery Corporation, which said corporation defendant in its motion, supported by an affidavit of Elbert L. Hyde, alleges is, and at the time of the filing of the counterclaim was, the sole owner of the Bates patent, having granted, however, to the defendant company certain exclusive rights, licenses, and privileges under said patent. On January 16, 1933, there was also filed a motion on behalf of plaintiff for an order dismissing the defendant’s counterclaim in so far as it charges infringement of the Bates patent.

For reasons set forth, and on the authorities cited at the time, this court on April 21, 1933, overruled the motion of the defendant for an order to join United Shoe Machinery Corporation as a party defendant herein, and upon the same day sustained the motion filed by plaintiff to dismiss the counterclaim. Orders conforming to these decisions of the court were duly filed on May 22, 1933. It is in view of the former rulings of the court, just referred to, that defendant now tenders a document entitled Amended Counterclaim of Defendant on Bates Patent No. 1,565,248, which, in the motion now before the court, it prays leave of court to file, and, if this is granted, to have the United Shoe Machinery Corporation brought in as a party defendant, as herein-before set forth. It is claimed on behalf of the defendant that the counterclaim as now presented contains (principally in paragraph 24 thereof) certain averments which were not contained in the counterclaim^ as originally filed (having particular reference to paragraph 24 of that document), and that, in view of these allegations as now contained in the counterclaim tendered for filing, the present motion should be sustained under the authority of Equity Rule 30 (28 USCA § 723). In their brief, counsel for defendant company state the situation thus: “The issue, as we understand it, is whether or not the defendant is entitled to file its new counterclaim and whether its prayer should be granted that the United Shoe Machinery Corporation be brought into the cause as a party defendant. This question is to be determined in accordance with Equity Rule 30, i. e., must the defendant, to pursue its claim under the Bates Patent, bring a suit independently against the plaintiff in some jurisdiction where the plaintiff has a regular and established place of business, or may the relief be obtained by counterclaim.”

In the interest of brevity, the court will not here recite “Equity Rule 30,” as all counsel are familiar with the rule or have it easily accessible. In support of their argument that defendant’s claim in the instant ease falls within rule 30, counsel for defendant cite, among other eases, Chicago & N. W. R. Co. v. Lindell, 281 U. S. 14, 50 S. Ct. 200, 74 L. Ed. 670, and American Mills Co. v. American Surety Co., 260 U. S. 360, 43 S. Ct. 149, 67 L. Ed. 306, but the court is of the opinion that these authorities are not decisive of the question before this court, for the reason that the situation existing in the instant case does not appear to have been the situation, in either of the eases just referred to. As pointed out by counsel for plaintiff, neither of these cases shows a defendant’s right to bring in a third party by way of a counterclaim. They refer to the liberality with which rule 30 shall be interpreted in order to facilitate the prompt disposition of equitable controversies between the same litigants.

It appears to have been settled by the Supreme Court of the United States that the defendant, if it owns a patent which plaintiff infringes, has a right to bring a counterclaim charging plaintiff with infringement of a patent owned by defendant, even though the plaintiff is not a .resident of the district. General Electric Co. v. Marvel Rare Metals Co., 287 U. S. 430, 53 S. Ct. 202, 77 L. Ed. 408. In the instant case, however, it is conceded that the United Shoe Machinery Corporation owns the Bates patent and it follows, therefore, that defendant itself cannot base “an independent suit in equity” (Rule 30) against plaintiff on the Bates patent. Defendant is dependent upon having the United Shoe Machinery Corporation, owner of the title to the Bates patent, joined as a party with it in order to maintain its counterclaim; hence its prayer (in the present motion) that the court order United Shoe Machinery Corporation brought in as a party defendant.

It appears of record in the case, from the documents filed with and made a part of the motion filed by defendant (hereinbefore referred to) on January 6, 1933, that defendant has a license from the United Shoe Machinery Corporation, owner of the Bates patent, which applies “only to the laundry and garment pressing fields.” It further appears from the papers on file that defendant herein secured its license from United Shoe Machinery Corporation after it had been sued in the instant action for infringement. As hereinbefore stated, the bill of complaint was filed in this court on October 9, 1929. To its motion, filed on January 6, 1933, the defendant company attached a copy of the license agreement between the United Shoe Machinery Corporation and the defendant herein, which shows that it was made and entered into on the 5th day of December, 1929.

The court is in accord with the views expressed by counsel for plaintiff that, if Rule 30 is to be so liberally construed as that it will permit a defendant, after it has been sued for infringement, to go out and buy in some patent and thereafter file an answer and counterclaim based on a patent so recently acquired, public policy would indicate that under such circumstances a party must at least acquire full legal title to the patent and not rely on curing such a defect by seeking to bring in as a party to the ease, the actual and legal owner of the patent who is in no way concerned with the issues or the litigation between the original plaintiff and defendant. In the instant case the legal owner is a complete stranger to the litigation, and, as pointed out by counsel for plaintiff in their brief, to now grant the prayer and permit the United Shoe Machinery Corporation to become a party defendant might lead to the filing of a supplemental bill against the United Shoe Machinery Corporation, and thus the matter become interminable.

It is submitted on behalf of defendant that, since this counterclaim is an amendment only of the former counterclaim which was dismissed because of the form of its allegations, there is every reason according to usual practice to permit the amendment to be filed, reserving the questions as to its propriety in the cause for subsequent determination. Inasmuch, however, as the question seems to be squarely raised, and in order that there may be no further delay, or perhaps added expense in the taking of testimony that ultimately might be of no consequence, the court has concluded that the question should be determined at this time on the merits, and is of the opinion that the motion of the defendant is not well taken, and that it should be, and it is therefore, overruled, and the prayer that the United Shoe Machinery Corporation be brought in as a party defendant to this proceeding is denied.

An order may be drawn accordingly.


source: Caselaw Access Project

author: CAMPBELL, District Judge.

license: Public Domain

text:
    VAN KANNEL REVOLVING DOOR CO. v. GENERAL BRONZE CORPORATION (two oases).
    Nos. 6967, 6997.
    District Court, E. D'. New York.
    March 15, 1934.
    Munn, Anderson, Stanley, Foster & Biddy and T. Hart Anderson, all of New York City (Orson D. Munn and Daniel H. Kane, both of New York City, of counsel), for plaintiff.
    Moses & Nolte, of New York City (Charles Neave and Edmund Quincy Moses, both of New York City, of counsel), for defendant.
   CAMPBELL, District Judge.

By consent the two suits were tried together.

They are based on the alleged infringement by the defendant of the following patents. The title to each is in the plaintiff.

The first action is based upon patent No. 1,890,365, issued to Robert L. Blanchard, assignor to Van Kannel Revolving Door Company, the predecessor of the plaintiff herein, for full collapsible panic proof revolving door, granted December 6, 1933, on an application filed February 26, 1931.

The second action is based upon patent No. 1,514,861, issued to Frank L. Gormley, for speed control for revolving doors and the like, granted November 11, 1924, on an application filed January 21, 1924, and assigned by mesne assignments to the plaintiff.

The plaintiff is a New Jersey, corpora^ tion, having a regular and established place of business in the borough of the Bronx, city of New York, and the defendant is a New York corporation, having a regular and established place of business in the borough of Queens, city of New York.

The defendant has interposed an answer in each of the actions, setting up the twofold defenses of invalidity and noninfringement, and in the second action the defense of unclean hands.

The defendant within the jurisdiction of this court, since the date of the patent to Blanchard, No. 1,890,365, and prior to, at the time of, and since, the filing of the bill of complaint in the first action, has manufactured, constructed, offered for sale, and sold, revolving doors embodying and containing the construction shown in the photostats Exhibits 3 and 4 herein, and the defendant within the jurisdiction of this court, since the date of the patent to Gormley, No. 1,514,851, and prior to, at the time of, and since, the filing of the bill of complaint in the said second action, has manufactured, constructed, offered for sale, and sold, revolving door constructions embodying and containing a speed control device, as shown in the photostat Exhibit 7 herein.

Plaintiff is an old and large manufacturer of revolving doors.

Defendant is engaged in the manufacture and installation of architectural bronze work in buildings, and its efforts in the manufacture of revolving doors have been confined to within about the last two years, prior to which time the defendant purchased revolving doors, which it installed, from the plaintiff and its predecessor and others.

The reason assigned by the defendant for engaging in the manufacture of revolving doors being that it could not secure revolving doors from the plaintiff at what were considered by the defendant as reasonable prices.

This reason, of course, would not relieve the defendant from infringement.

The defendant’s contention that plaintiff has harassed the trade was not sustained. The successful litigations by plaintiff, in which patent No. 656,062 was universally sustained, and reissue patent No. 14,255 was also sustained, are simply evidence that plaintiff was active in protecting its rights as the owners of such patents against infringers.

The evidence does not justify the defendant’s contention that plaintiff has a virtual monopoly in the revolving door business, but, if it did have such a monopoly, that would not relieve the defendant of its responsibility for infringement. United States Fire Escape Counterbalance Co. v. Joseph Halsted Co. (D. C.) 195 F. 295; Motion Picture Patents Co. v. Ullman (C. C.) 186 F. 174; Western Electric Co. v. Wallerstein (D. C.) 48 F.(2d) 268; Radio Corporation of America v. Majestic Distributors (D. C.) 53 F.(2d) 641.

For convenience I will consider the patents in their order.

Patent No. 1,890,365 to Blanchard, the first patent in suit.

The patent is described on its face as for a “Full Collapsible Panic Proof Revolving Door.”

A panic proof revolving door is one whose door wings will all fold in one direction, like the leaves of a closed book, without conscious manipulation on the part of a crowd seeking egress from a building, but merely in response to abnormal pressure applied to opposing door wings.

The patentee in his specification describes his invention as follows: “This invention relates to revolving doors, and has particular reference to certain improvements in that class of revolving doors known -as the full collapsible panic proof typ'e, in which the several wings thereof are capable of movement from their normal radial relation, under excessive or abnormal pressure, to positions where they project from one side of a central support and are disposed approximately in parallel planes.” Page Í, lines 1 to 10.

He then calls attention to the fact that there have been effective and defective revolving door structures, all of which are comparatively complicated and expensive to produce and assemble, and states it to- be the object of his invention to overcome those objections by means of a comparatively simple and inexpensive structure.

He further says:

“The present invention broadly aims to provide a revolving door structure of the indieated type which includes a central rotary support or shaft and a plurality of door leaves, an improved means for supporting and guiding said leaves whereby they may be disposed in normal radial relation to said central shaft or support and in which said means permits of their movement on successively different axes to a fully collapsed position wherein all of the leaves are in substantially parallel planes to each other or practically any other arrangement which may be assumed by the leaves of this class of doors.

“More particularly, the invention resides in an improved means for supporting the door wings from, connecting the same with, and guiding said leaves for movement with respect to a rotary central support or shaft, in which use is made of an element movable with and disposed perpendicular to said central support or shaft and in which said element and each door wing are provided with axially extending interengaging recessions and projections serving to- permit each door wing to swing successively on relatively different axes.” Page 1, lines 26 to- 51.

The structure illustrated in the patent is as follows:

A central rotatable spindle or shaft A is provided with a pair of disks 10, secured to the spindle near the upper and lower ends respectively. The four door wings B, C, D, and E are supported by the disks so as to be held normally in radial position, and so that, when normal pressure is applied to any one of the wings, the disks, the four wings, and the spindle will rotate together. If excessive pressure be applied in opposite directions to two wings, the wings will pivot or swing on the disks in the direction of pressure to assume the position shown in Fig. 3. A three-point connection is provided between each of the wings and each of the disks, comprising the two pins 22 and pin 21 mounted on the wing and interengaging with communicating guideways on the disk defined by the edges 16> 19, and 20. If a wing be collapsed, it pivots for a short distance upon the pin 21, the pins 22 sliding circumferentially in the guideway defined by the edges 19 and 20. When one of the pins 22 reaches the end 17 o-f its guideway, the door wing ceases to pivot on the pin 21 and pivots then on the pin 22, disposed in the end 17 of the guideway; the pin 21 and the member 16 serving as guides for the pivoting. When the wing is collapsed in one direction, it will pivot on one pin 22, and, when it is collapsed in the other direction, it will pivot on the other pin 22. In either direction the pin 21 will, in co-operation with the slot 16, serve as a guide for the pivoting on pins 22. The initial pivoting, when the wing is collapsed in either direction, is on the pin 21; the pins 22 sliding circumferentially in the groove formed between the, members 19 and 20. However, only a minor proportion of the pivoting is on the pin 21; the principal pivoting being on either one of the pins 22, depending upon the direction in which the wing is collapsed. The pins 21 and the ends 17 of the circumferential grooves are eccentrically placed with respect to the central shaft A, and the two guide walls 16 are ares described from the two pivotal points 17, respectively. To hold the wings in normal radial position, a spring-pressed detent 26 is secured in each door wing, and it engages in a keeper opening or recess 29 formed in the periphery of the disk 10. '

Claims 4, 0, 12, 13, 14, 15,16, 17, and 18 are involved in the-present suit.

I cannot say that any of the claims is typical of them all, but claim 17, which reads as follows, well illustrates the invention : “17. In a revolving door structure, a central supporting member, means secured to said member for supporting the door wings, members carried by each door for engaging the said supporting means for connecting the wings thereto for pivotal movement, each wing being collapsible in one direction by swinging movement on one member and collapsible in the opposite direction by swinging movement on another member, and interengaging guide means provided respectively on each door wing and the wing supporting means for guiding the swinging movement of the wings on the respective members.”

The defendant introduced in evidence the following seven prior patents: No. 195,273 to Harvey; No. 656,062 to Van Kannel; No. 696,027 to Foster; No. 836,843' to Van Kannel; reissue No. 14,255 to Van Kannel; No. 1,007,025 to Ely; No. 1,069,739 to Sutton.

Patent No. 195,273 to Harvey is for an improvement in gates, and discloses a swinging farm gate having an upper and lower hinge, the upper being merely a single central pivot, and the lower hinge consisting of a projection from the bottom of the post of the gate, which projection is horizontal and is provided with two grooves g g with arcs of circles, and the two projections e e placed on a part fastened to' the ground, engage and slide in the circular grooves g g, and, when the gate is opened either way, it will be caused to slant in such direction that it will swing shut by its own gravity. This patent has nothing to do with revolving doors, and could not be employed in a revolving door structure, as the hinges cannot pivot or swing sufficiently to enable the wings of a revolving door to fold in parallel relation, and the outward displacement of the lower portion of the wing, due to the structure of the lower hinge, would cause the wing to jam against the inelosure of the revolving door against which the edges of the wings must have close contact when in operation.

Patent No. 656,062 to Van Kannel, for a revolving door, discloses a panic proof door. Fig. 3 of this patent shows that each wing is suspended or hung from the central spindle 1, by means of articulated links or broken knuckles 27 and 23', said links or broken knuckles being provided with two pivots, both in the central plane of the wing member, whereby it is possible for the wing to swing on the outer unnumbered pivot, in either direction, and it is also possible for the wing to swing in either direction on the inner pivot 23. There is no guideway or groove for guiding the swinging motion! of the wings in this patent, and, while it shows a plurality of pins, it does not show a plurality of communicating, intercommunicating guidewrays; the pins being placed on the central plane of the wing and not eccentric thereto.

If pressure is applied upon the wrong portion of the wing, the arm 32 may fail to release the wings, and in collapsing the wings may jam against any one of the arms 32 and obstruct the passageway.

. The structure is entirely different from that of the patent in suit, and this patent has no bearing on the ease.

Patent No. 696,027 to Foster, for hinge, discloses a hinge for a swinging door. The swinging door is hung upon a pair of hinges, so that, when it is opened, the plane of the door will be displaced, as shown in Fig. 7 of the patent, causing it to be closed automatically by gravity. It is similar both in construction, in mode of operation, and in action, to that of the Harvey patent previously referred to, except that the projections are placed on the bottom of the door and grooves in the supporting member 20, which is fastened to the door. Several constructions of this patent are shown, one in which there is one pin, and one in which there are two pins or projections, sliding in the grooves, but I do not think that this patent requires further consideration, as this construction could not be employed in a revolving door, for the reasons considered in discussing the Harvey patent.

Patent No. 836,843 to Van Kannel, reissue patent No. 14,255 to Van Kannel, both for collapsible revolving door, the second patent being a reissue of the first, disclose a construction known and referred to in the record and herein as the geared type of revolving doors.

This was the type of doors which formed plaintiff’s principal design of panic proof door prior to the Blanchard invention, and they still have a limited sale. The construction and mode of operation of the device described in these two patents is identical, and therefore an explanation of the reissue patent will be sufficient.

A reference to Pig. 11 clearly shows the construction of the disk members and of the hangers, which attach the wings to said disk members. The disk e with a groove d which extends circumferentially to the outer periphery of the disk, which disk is also provided with the pinion g, and each wing with racks f which mesh into the teeth of the pinion. The wing support or hanger is also provided with a pivot e which slides in the groove d. In normal radial position the wings are at the four quadrants, but, when collapsed, they assume the folded parallel position shown in Pig. 11, accompanied by a movement of the pinion teeth simultaneously with the movement of the rack on the pinion teeth, so that the wing is displaced to a parallel position as shown in Pig. 11. The wings are each positioned in the normal radial position by the projection of the pin o into a socket m, the pin «acting as a detent, but upon abnormal pressure the head of the pin jumps out of the socket and allows the revolution of the wing to the position in Pig. 11. This reissue patent does not show a plurality of communicating guideways carried by a central support to cause the wings to move successively on different axes, but does show a single unitary guideway which permits the revolution of the wing only on one axis; that axis being central to the plane of the wing.

The patents under discussion do not disclose a structure anticipating the patent in suit, nor does the door of the said Van Kannel patents operate upon the principle of the patent in suit.

Patent No. 1,007,025 to Ely, for revolving door structure, discloses a complicated and clumsy structure for a so-called collapsible revolving door, which does not seem to me to be a fully collapsible panic proof door.

A brief explanation of the structure described in this patent is not possible; therefore I will limit my discussion to the means by which the wings of the door are attached to certain disks and provided with devices to permit a limited movement from their normal position. The wings are supported from a series of disks, of which the upper D9 and the lower D' are rigidly attached to the central spindle D5, and one wing C is suspended from these disks by means which comprises a U-shaped support for the two springs, to one end of which is attached a link, being the member D14, and the other end of the link is pivoted to a lug D40 projecting from the inner end of the wing, by which it is possible for the wing to move outwardly away from the central spindle a shor-t distance compatible with the allowable compression of the springs. There are also provided for the wings two eccentrically placed pivots C8 upon which the wings can swing either to the right or to the left as far as the compression of the aforesaid springs will permit. A second wing C2 is joined upon the disks d2 and d8, which are fitted to turn in contact with the shaft and connected by a sleeve dlO. A third wing C3 is joined upon the disks d3 and d7, which are fitted to turn upon sleeve dlO, and connected by sleeve dll, the remaining wing e4 ia joined upon the disks d4 and d6, which are fitted to turn upon sleeve dll and are connected by a sleeve dl2. The same suspension is found in all the disks of the doors, but the six disks d2 and d8, d3 and d7, and. d4 and 6, are not rigidly attached to the central spindle, the consequence being that one wing can revolve to an are of any extent only by the revolution of the spindle to which it is attached, and the other wings are free to revolve to any position under pressure. To bring the four wings parallel, they would all have to be moved against the tension of the powerful springs to some degree, and unless the wings were all brought together and locked, one of them might come back. There are no guideways in the Ely disk, and, although there are two eccentrically placed pivots, there is no guideway associated with them.

Patent No. 1,089,739 to Sutton, for collapsible revolving door, discloses a device which is primarily an adaptation of the old double-acting hinge, found on swinging doors, to revolving doors, and consists of a central spindle b, a support attached to the central spindle d, and at each comer of d are found on each side double-acting hinges with a pivot at each side of the central plane of the wing whereby, as in all swinging doors, this door can swing either to the right or the left of its central plane.

The danger of the wings swinging back when collapsed, due to the action of the springs, provided for the double-acting hinges, which hold the wings in radial position, and the difficulty which may be expected in time from the sagging of the door, render this device impractical.

And, even though the patentee in the Sutton patent implies that the springs in the double-acting hinges may be omitted, that would only hasten the sagging; as where no springs are used, the doors would sag immediately.

• In this patent there is no> guideway for bodily shifting the wing connection with relation to its support from one pivotal axis to another.

Consideration of the prior art shows that there was novelty and invention in the patent in suit, and not merely the act of a skilled mechanic, and that it operates upon a different principle than that utilized in any earlier door.

The utility of the patent in suit was well summarized by Mr. Blanchard, who said: “The new model of door is very much simpler, having fewer number of parts, it would be very much more difficult for this type of door to get out of order, it would be practically impossible for the door to' jam and become inoperative in case of a panic, and it is far more rugged in construction and would last longer, being of greater service to the purchaser than the previous style; it, of course, is less costly for us to manufacture.” Record, p. 54.

■The patent has enjoyed great commercial success.

We now come to the question of infringement.

Whether the model which the plaintiff claims to have sent to- the defendant in the fall of 1931 ever came into the hands of any of the officers of the defendant seems to me to be of small moment, as the evidence shows that the defendant ordered revolving doors of the Blanchard type from the plaintiff in the early part of 1932, which were installed in the spring of 1933, and that shop drawings of the new design were submitted to the defendant at about the time of ‘the first order in January, 19321 The first of the doors of the type alleged to infringe was installed by the defendant in September, 1932.

The door and wing supports of the defendant’s device are shown on Exhibit 17, on the right-hand side thereof, where for convenience letters with the prime mark are used to designate the various elements, consisting of the disk, pins, guideways, and a portion of only one wing of the door is shown. The disk is formed with a pair of axially extending pins B' and C', and a pair of communicating guideways D' D', while the wing is formed with a pair of recesses for co-operating with the pins B' and C', and with an axial pin A', which engages the guideway. The door is held in a normal radial position by means of a spring-pressed detent, projected into a recess formed in the periphery of the disk. In collapsing in one direction, the wing will pivot around the pin B', and will be guided in its pivoting by means of the interengagement of projection A' and one of the guideways D'. In collapsing in the opposite direction, the wing will pivot around the pin C' and will be guided by the projection A' and the other guide-way D'.

The door and wing supports of the device of the patent in suit are shown on the left-hand side of that exhibit, consisting of the disk, pins, and a portion of one-door wing, the pin 21 as A, the pins 22 as B and C, and the walls 16 as D D.

A comparison of the structures Figs. 1 and 2 shows that in each there is a three-point connection A B and G, and A', B' and C', between the wing and disk, in which two of the points serve essentially as pivots, and the third point co-operates with communicating guideways in the disk, to guide the pivoting around the other two points.

Defendant contends that, in the alleged infringing door, the disk does not have communicating guideways, but only one guide-way. That does not seem to me to be exactly true, in the sense that the words “communicating guideways” are used in the patent in suit, as the conformation of the guide-ways in the alleged infringing structure, and the manner in which they are used, shows that they are communicating guideways in the same sense as in the patent in suit, in. that one of them serves as a guideway when the door collapses in one direction, and the other serves as a guideway when the door collapses in the other direction.

The three fulcrum points in both instances are disposed in the form of triangles, B C and B' C', being the bases; A and A' being the apices. In each instance the door wing, in collapsing, pivots about one of the two corners of the base B C or B' C', and is guided by the apex A or A', riding in one of the communicating guideways D D and D' D'. The pivotal points B C and B' O', and the communicating guideways D D and D' D' are eccentrically disposed with respect to the spindles 1 and T. There is a slight difference between the two forms, but they are merely variations in design, as the principle of operation and essential features of construction are the same.

In the disk of the patent in suit there is a short preliminary circumferential sliding upon the pivotal points, but, as I have hereinbefore said, this sliding forms but a minor proportion of the total pivoting of each door wing.

In the patent in suit the apex A of the triangle points towards the center of the disk, while in the defendant’s design it points toward the periphery of the disk. In the patent in suit the pivotal pins B and C are secured to the door wing and co-operate with recesses formed in the disk, while in the defendant’s design they are secured to the disk and co-operate with recesses formed in the end of the door wing. The defendant has reversed the position of the triangle and has reversed the location of the pins B' O'.

The claims of the patent in suit fall into two groups, claims 12, 14, 15, 16; 17 and 18 form one group. Claims 4, 6, and 13 form the second group. Claim 17 may be taken as illustrative of the first group, and, dividing it into its several elements and applying them to the defendant’s device, it will be seen that the claim reads directly on the defendant’s device, which includes every element of the defendant’s device. This is likewise true of claims 12, 14, 15, 16, and 18; all of the elements of each of them being included in the defendant’s device.

Of the second group, claim 4 may be taken as representative, and, dividing it into its several elements and applying -it to the defendant’s device, it will be seen that the claim reads directly on the defendant’s device, except that the location of the pins B' C' in the defendant’s device is on the disks, while in claim 4 the pins are located on the wing. The same is true of claims 6 and 13, each of which calls for a “set of projections on the door wings.” Whether such pivotal projections be located on the door wings or on the disk is immaterial, and does not in any way alter the operation of the device.

Claims 4, 6, 12; 13, 14, 15, 16, 17, and 18 of the first patent in suit No. 1,890,365 are valid and infringed.

Patent No. 1,514,851 to Gormley, the second patent in suit.

This patent is described on its face as for a speed control for revolving doors and the like.

The problem of controlling and regulating the speed rotation of revolving doors confronted those skilled in the art from the time that revolving doors were first made. Many expedients were tried, but without satisfaction, such as furnishing adjustable weather strips on the sides of the wings, several types of hydraulic governors and electrically operated speed control, and it remained for the patentee of the patent in suit to solve the problem by his comparatively simple invention.

This invention relates primarily to a governing mechanism which is actuated by the rotation of the door, and which controls the possible speed of rotation in such manner that, when a predetermined speed is reached, the brake will begin to function and prevent the acceleration or more speedy rotation of the door. The invention is illustrated by one form, but it is specifically stated that departures from this particular preferred form may be made within the scope of the invention. The device as shown and described comprises a central spindle 10, at the end of which, the lower end being used by way of illustration in the patent, a gear member 17 is attached rigidly to the said spindle, the said gear member 17 meshing into a pinion member 32, and on the same shaft as the pinion is attached another gear member 30, which in turn engages the thread of a worm 26, and by intermeshing engagement, the shaft 28 on which the worm is- disposed, is caused to revolve. At one extremity of the shaft 28 is provided a rotating disk 22, on which are suspended pivotally three brake dogs 23, 23, 23, which are pivoted at the point 24. These brake dogs engage with the circumferential brake shoe 21.

Claims 1, 2, 3, 4, 5, and 9 are involved in the present suit; they may be divided into two groups, claims 1 and 2 forming one group, and claims 3, 4, 5, and 9 forming the other group.

The changing of the location of the speed controlling device from one end of the door to the other does not relieve from infringement, being immaterial.

Claim 1, which is illustrative of the first group, reads as follows: “1. The combination of a rotatable spindle of a revolving door; a hidden support for said spindle below said door; a member secured to and rotatable with said spindle, said member being located between the said support and lower edge of said door, and a speed controlling device actuated by said member.”

The substitution of an equivalent for the worm does not relieve from infringement.

Claim 9, which is illustrative of the second group, reads as follows: “9. The combination of a rotatable spindle for a revolving door; a support for one end of said spindle having a chamber therein; a rotadable worm in said chamber; means for imparting rotation to said worm by the rotation of said spindle; and means within said support actuated by said worm for retarding its rotation when a predetermined speed is reached.”

Defendant offered in evidence the following alleged prior art patents: Patent No. 519,110 to Gardner; patent No. 603,363 to Ireland; patent No. 872,050 to Burhans; patent No. 1,014,997 to B'liekensdeifer; patent No. 1,272,595 to Anderson; patent No. 1,388,199 to Gormley; and drawings and a model of an old hydraulic governor.

Patent No. 519,110 to Gardner, for retaining or lowering apparatus, shows an attachment for dental chairs which comprises a rack attached to the bottom of the chairs, a gear wheel meshing therewith, a following train of gear wheels which drive a worm L, and upon the end of the shaft about which the worm revolves there is provided a brake disk, brake dogs, P P, and a circumferential brake shoe O, whereby the descent of the chair can be regulated as described. The mechanism is a combined brake for holding the chair in a stationary position, and a governor for preventing the chair from lowering too rapidly. It has nothing to do with revolving doors, and could not be used in association with a revolving door.

Patent No. 603,363 to Ireland, for gov-. emors, shows a device which is a centrifugal governor provided with shoes 12, secured to levers 9, pivoted upon bolts or pins 10, and pivoted with weights 11, and mounted on a disk 2, which disk is in turn mounted on a central spindle 6, and the revolution of the spindle and the disk causes the shoes 12 to move out by centrifugal action against the flanges 4, against the action of the spring 18. This device would not operate as a brake for a revolving door, as its braking action would be insignificant if mounted directly on the spindle of a revolving door.

Patent No. 872,050 to Burhans, for fire escape, shows a' centrifugal braking device attached to a fire escape. The reel C which carries the rope, constitutes the means for escaping from a fire, has attached to one end a gear 11, which meshes with a worm 12 on the shaft, 10, and at the upper end of the shaft 10 is attached a centrifugal brake similar to those already considered, which consists of the brake dogs 8 and the circumferential brake shoe member 7. This is not a braking device for a revolving door, but is a device found in arts unrelated to revolving doors.

Patent No. 1,014,997 to Bliekensderfer, for speed controlling mechanism for revolving doors, shows a brake for a revolving door that has attached to the upper end of the shaft 22 a small gear or pinion 25, which meshes with a stationary gear 26. On the shaft 22 is mounted the usual form of ball governor, the balls of which 18 are shown in Pig. 3. The revolution of the door, its spindle, and the gear attached thereto, causes a revolution of the centrifugal ball governor device, which causes a member 32 to frietionally engage a brake shoe member 30 and exert a resistance against the accelerated revolution of the spindle. This device is entirely exposed, and, if not made small, would be unsightly on a door, and. made small, as it is, the fiietional resistance is small. This is the only patent cited that is in this art.

Patent No. 1,272,595 to Anderson, for governor mechanism for spring motors, shows a centrifugal governor for spring motors such as talking machines, in which the revolution of the worm 38 brought about by the train of gearing causes the spreading apart of the centrifugal ball governor members 41, and thereby exerting the braking action.

Patent No. 1,383,199 to Gormley, for speed-controlling mechanism for load-lifting devices, shows a mechanism best illustrated by its application to a high-speed screw jack, where, by means of a gear wheel 29, a shaft 35, having secured thereto a pinion 36, meshing with gear wheel 29 and secured also to said shaft A, worm wheel 37 which meshes with a worm 38, a braking action can be exerted to offset or prevent the too rapid descent of the screw jack. This braking device is not automatically but manually operated, is in an unrelated art, and could not be used as a governor for revolving door.

Defendant also introduced in evidence a blue-print, a photograph, and a part of an old hydraulic governor formerly manufactured by Van Kannel Revolving Door Company.

In the old hydraulic governor in question there are two pistons, one on each side of the axis of the door, and on top of the king-bolt of the door is a large gear which is meshed with two smaller pinions on either side that work the crank that works the pistons back and forth in the cylinders. Whenever the door was revolving, both of those pinions began working and began pumping the oil back and forth through the gateway. There was an adjusting screw that regulated the amount of the opening in the gateway which, in turn, offered resistance to the speed of the door as it went around. This governor was mounted overhead in a trolley. This device was not satisfactory, as it failed to perform year in and year out. It operated differently in cold and warm weather, as plaintiff was not able to find any known liquid which does not change in viscosity between summer and winter, and therefore it operated very stiffly in the wintertime and too freely in the summertime. Such a device could be kept in working order only by constant adjustment. It would cost mueh more to make than the device of the patent in suit. The old governor did not anticipate the patent in suit nor did it teach the patentee of the patent in suit how to solve the problem of providing speed control for revolving doors.

A consideration of the alleged prior art patents cited by defendant shows that only one patent, No. 1,014,997 to Bliekensderfer, has any relation to speed control mechanism for revolving doors, and that all of the other patents cited by the defendant are in unrelated arts, and were not designed nor intended for use as speed control mechanisms for revolving doors. These patents in non-analogous arts cannot be relied upon as anticipations. Line Material Co. v. Brady Electric Mfg. Co. (C. C. A.) 7 F.(2d) 48; American Cone & Wafer Co. v. Denaro (C. C. A.) 297 F. 913.

Patent No. 1,014,997 to Bliekensderfer discloses a device which is exposed to view between the wings of a revolving door and is not operatively connected with the central spindle of the door, and the device so disclosed is different from that of the patent in suit.

All of the patents cited by the defendant, except patent No. 603,363 to Ireland, were cited and considered by the Patent Office during the prosecution of the Gormley patent in suit.

None of the patents cited by the defendant nor the hydraulic governor cited by the defendant anticipate the patent in suit.

Patent No. 1,514,851 to Gormley, the second patent in suit, shows novelty and invention, and not merely the act of a skilled mechanic,, as Gormley solved the problem in an effective and simple manner, which every one else overlooked through many years of searching and developing by those skilled in the art. The simplicity of the invention, in view of our knowledge after the event, must not be permitted to detract from the merit of the invention, which must be determined on the basis of the knowledge of those skilled in the art at the time the invention was made, and the many efforts which had been made to solve the problem.

Plaintiff’s commercial product is the same as the Gormley patent in suit, with one exception, that is, the plaintiff employs spur gears instead of the worm, and worm gear for which the spur gears are an equivalent.

Plaintiff has been manufacturing a governor of the Gormley type for the past year, and they have given satisfaction and have met with commercial success, as they have in that time sold about fifty of them.

No matter what praise the defendant may give to the prior art, it gave a higher tribute to the invention of the patent in suit by imitation.

The claims in suit of the Gormley patent in suit are valid.

This brings us to the question of infringement.

The defendant’s speed control mechanism has a mechanical brake of the same type as the patent in suit, concealed from view at one end of the door, and operated by a gear secured to the central spindle of the door. The structure used by defendant is shown in Exhibits 7 and 22, and comprises a gear secured to the upper end of the spindle of the door, meshing with a pinion keyed to a short stub shaft, on the other end of which is secured the brake disk. A pair of brake shoes pivoted to the disk Are held by springs, so as normally to be within the confines of the periphery of the disk.

When the disk is rotated at a sufficient rate of speed, the dogs will pivot outwardly and engage a cylindrical brake shoe surrounding the disk.

In all essential features, the defendant’s mechanism is the same as the patent in suit, except that it employs spur gears instead of the worm and worm gear for which the spur gears are the equivalent, and it employs an intermediate gear between the gear on the spindle and the pinion on the governor shaft.

That the defendant’s speed control is hidden above the door, while that illustrated in the patent in suit is hidden below the door, is immaterial, as one is the equivalent of the other.

Claims 1, 2, 3, 4, 5, and 9 are involved in the present suit.

These claims read on the defendant’s structure, and infringement is not escaped because in defendant’s structure the speed-controlling device and other parts are located above the door instead of below the door, as described in claims 1 and 2, as one location is the equivalent of the other, nor because the defendant uses spur gears instead of a worm, as recited in claims 3, 4, 5 and 9, as they are equivalents.

Claims l,-2, 3, 4, 5, and 9 of the second patent in suit, No. 1,514,851, to Gormley, are valid and infringed.

Defendant also alleges as a defense that the plaintiff does not come into court with clean hands.

This charge of unclean hands is based upon the Munson patent and file wrapper relating to speed regulators for revolving doors.

It can have no application in any event to the first suit, which is based on patent No. 1,890,365 to Blanchard, for full collapsible panic proof revolving door, as the suits were separate and distinct suits, and tried together by consent, for convenience.

The defense of unclean hands likewise has no application to the second suit, on the Gormley patent No. 1,514,851.

While it is a fact that plaintiff is the owner both of the second patent in suit and the Munson patent, it is also a fact that the Munson patent is not involved,in this suit; and, even if it was a fact, and I cannot find from the evidence that it is, that plaintiff deceitfully secured the Munson patent, that would have no bearing on the issues of the present suit, as it has no immediate and necessary relation to the equity sought in respect to the matter in litigation. Keystone Driller Co. v. General Excavator Co., 290 U. S. 240, 54 S. Ct. 146, 78 L. Ed. 293; Bentley v. Tibbals (C. C. A.) 223. F. 247; Andrew Jergens Co. v. Bonded Products Corporation (C. C. A.) 21 F.(2d) 419; Youngs Rubber Corporation v. C. I. Lee & Co. (C. C. A.) 45 F.(2d) 103.

While in the case of Keystone Driller Co-, v. General Excavator Co., supra, the Supreme Court found that the plaintiff came into court with unclean hands, the facts in that case are very different from the facts in the instant suit. In that case the plaintiff had suppressed evidence of prior use relating to one of the patents in that suit, and, in attempting to secure a preliminary injunction, had relied upon a prior decree which had been secured because of the suppression of the evidence, and its culpability was directly connected with the subject-matter of the litigation, whereas in the instant suit, whatever culpable acts, if any, that did occur, occurred in relation to the Munson patent, and that patent is in no way involved in the instant suit.

The attempt of the defendant to form a basis for the charge of unclean hands by the quotation of separate sentences of the patent solicitors’ argument in the Munson file wrapper must and does fail, as criticism of the worm and gear arrangement of the patent as not a practical device in an application for another patent certainly is no evidence of unclean hands in this suit.

The criticism may have been honestly made by that attorney, but, on the evidence of both plaintiff’s expert and defendant’s witness Ely, I am convinced that the device is operative, although both plaintiff and defendant, in their commercial structures, use an equivalent for the worm.

The defense of unclean hands is not sustained.

The plaintiff is entitled to a decree in each of the suits against the defendant with injunction, costs, accounting, and the usual order of reference.

A decree may be entered in accordance herewith.

Settle decree on notice.

Submit proposed findings of fact and conclusions of law in accordance with this opinion, for the assistance of the court} in accordance with rule 70% of the Equity Rules (28 USCA § 723) and rule 11 of the Equity Roles of this court.


author: LIND LEY, District Judge.

text:
    BEDDINGS v. GREAT EASTERN STAGES, Inc.
    No. 475.
    District Court, E. D. Illinois.
    April 16, 1934.
    Wm. M. Acton, of Danville, Ill., for plaintiff.
    Walter T. Gunn, of Danville, Ill., for defendant.
   LIND LEY, District Judge.

Plaintiff filed suit in the circuit court of Kankakee county, Ill., to recover damages for personal injuries in the sum of $10,000. Defendant, upon showing of diverse citizenship, caused the suit to be removed to this court and filed its plea.

Plaintiff now moves orally to amend his declaration by reducing the amount of the ad damnum to less than the jurisdictional amount of the federal court and, upon such amendment being allowed, to remand the cause to the state court. In this connection plaintiff relies upon section 37 of the Judicial Code, Title 28 USCA § 80, in which it is provided that if in any suit it shall appear to the satisfaction of the district court at any time after suit has been brought or removed such suit does not really and substantially involve a dispute or controversy within the jurisdiction of the court, the district court shall proceed no further but shall dismiss the suit or remand it.

The Supreme Court of the United States, in Barry v. Edmunds, 116 U. S. 550, 6 S. Ct. 501, 29 L. Ed. 729, points out that before the trial eonrt may dismiss or remand a suit, as the case may be, the court must find, as matter of fact, from evidence submitted, that the damages as alleged in the declaration are eolorably asserted and that the sum demanded is not in fact of jurisdictional amount. There the action was for malicious and willful trespass and the damages were alleged to be in excess of the jurisdictional amount. Upon argument of a demurrer to a special plea, the trial court said that it was of the opinion that the suit did not really involve the jurisdictional amount. The Supreme Court reversed, saying that inasmuch as there was no fact or finding in the record that the damages were really less than the jurisdictional amount, the action of the court in dismissing the suit was erroneous.

As I understand this decision, it establishes clearly the rule that the court is powerless to remand the cause under section 37 unless it is established by evidence of record that the allegation of jurisdictional amount is colorable and false, and that in the absence of evidence, from which it can make a finding to a legal certainty that the jurisdictional amount is not involved, the court may not rightfully remand, bnt must accept as true the averments that the amount involved is in excess of the required jurisdictional amount.

Thus in Put-In-Bay Waterworks, Light & Railway Co. v. Ryan, 181 U. S. 409, 21 S. Ct. 709, 718, 45 L. Ed. 927, wherein the defendant filed affidavits alleging that the amount involved was less than the jurisdictional amount, the Supreme Court held that this was not sufficient basis for dismissal. The court said:

“Jurisdiction did not fail by reason of anything that appeared in ex parte affidavits filed on behalf of the defendant company, denying the truth of the allegations contained in the original bill in respect to the amount in dispute.”

If ex parte affidavits are not sufficient evidence upon which to base a finding that the jurisdictional amount is not involved, surely .an oral motion for leave to amend plaintiff’s declaration does not justify any finding to a legal certainty that the amount involved is less than $3,000.

Thus it has been held that a reduction of the amount involved, when made subsequent to removal, will not justify a remand. Kanouse v. Martin, 15 How. 198, 208, 14 L. Ed. 660; Foster Federal Practice (6th Ed.) vol. 3, p. 3066, and eases there cited.

In Bernheim v. Louisville Property Co. (D. C.) 221 F. 2;73, at page 277, the court said:

“After the filing of the petition for the removal of the action to this court, the plaintiff filed in the state court a second amended petition; but that phase of the case may be disregarded, upon the authority of many cases, besides that of Graves v. Corbin, 132 U. S. at page 585, 10 S. Ct. 196, at page 200, 33 L. Ed. 462, where it was said that ‘the case as made by the bill and as it stood at the time of the petition for removal, is the test of the right to removal.’ ”

The cases cited by plaintiff have to do with instances where the record disclosed beyond question a proved fact that the jurisdictional amount was not involved. That fact not having been established in the present situation, the court is powerless to allow the motion and same is denied. An exception will be allowed.


author: LIND LE Y, District Judge.

text:
    In re CAMERON.
    No. 2263.
    District Court, E. D. Illinois.
    April 18, 1934.
    Schneider & Schneider, of Paxton, Ill., for bankrupt.
    C. M. Swanson, of Paxton, Ill., for trustee.
   LIND LE Y, District Judge.

The bankrupt scheduled as a part of his assets, under the heading “Debts due petitioner on open account,” the sum of $757.15 due from Bartlett Frazier Company, Chicago, Ill. This money the trustee has collected. The bankrupt having no chattel property, the trustee filed report that there were no exemptions to be set off to him. The bankrupt thereupon objected to the report, claiming $400 as exempt under the statute of the state of Illinois, and prayed that the same might be set off to him from the moneys collected from Bartlett Frazier Company. The referee found that the statutes of Illinois do not warrant the setting off of exemptions from moneys due the bankrupt and approved the trustee’s report. This review follows.

Bartlett Frazier Company was a brokerage grain commission firm doing business on the Board of Trade in Chicago with whom the bankrupt had had an account for some period of time. Through this firm he bought and sold grain on the Board of Trade. The brokerage house would credit his account with proceeds of grain sold and debit it with proceeds of grain purchased. At the time bankruptcy intervened, there was a credit balance due the bankrupt in the sum of $757.15 as hereinbefore mentioned.

The statute of the state of Illinois, Smith-Hurd Rev. St. 1933, c. 52, § 13, Ca-hill’s Rev. St. 1933, e. 52, par. 13, provides that “personal property” owned by the debt- or when married shall be exempt from execution to the extent of $400 in value. The statute, however, contains this provision: “Provided, that such selection and exemption shall not be made by the debtor, or allowed to him or her from any other money, salary or wages due him or her from any person or persons or corporation whatever.” The Supreme Court of Illinois has held that this proviso excludes from the debtor’s estate, out of which he may make his selection of exempt property, all money due him, without regard to the character of the indebtedness or the circumstances under which it arose. Finlen v. Howard, 126 Ill. 259, 18 N. E. 560. It has been, said that the language of the proviso is plain and unambiguous and that the intent is to forbid the debtor from selecting as exempt any money due him whatever may have been the circumstances under which it became due. Reade v. Kerr, 52 Ill. App. 467. Inasmuch as the federal courts are bound by the interpretation of the exemption statute of the state within whose limits the court exists, we are hound by the interpretation aforesaid.

However, it is contended by the bankrupt that the brokerage house, being his agent, was a fiduciary; that the money in its hands was held in trust for the bankrupt; was in fact his money and, therefore, is a part of his estate from which he may have his statutory exemption.

The Supreme Court of the United States in Crawford v. Burke, 195 U. S. 176, 25 S. Ct. 9, 11, 49 L. Ed. 147, said:

“We may remark here, in passing, that ever since the ease of Chapman v. Forsyth, 2 How. 292, 11 L. Ed. 236, this court has held that a commission merchant and factor who sells for others is not indebted in a fiduciary capacity within the bankruptcy acts by withholding the money received for property sold by him. This rule was made under the Bankruptcy Act of 1841 [5 Stat. 440], and has since been repeated many times under subsequent acts. Neal v. Clark, 95 U. S. 708, 24 L. Ed. 586; Hennequin v. Clews, 111 U. S. 679, 28 L. Ed. 567, 4 S. Ct. 576; Noble v. Hammond, 129 U. S. 68, 32 L. Ed. 623, 9 S. Ct. 235; Upshur v. Briscoe, 138 U. S. 375, 34 L. Ed. 934, 11 S. Ct. 313, — as well as in cases in the state courts, too numerous for citation.”

In Furber v. Dane, 204 Mass. 412, 90 N. E. 859, 860, 27 L. R. A. (N. S.) 808, the court said:

“It is settled in this commonwealth that the relation between such commission merchants or brokers and their customers is, in the absence of special circumstances, merely that of debtor and creditor, and not a fidueiary relation. Such a factor or broker, as was said by Merrick, J., in Vail v. Durant, 7 Allen [Mass.] 408, 410, 83 Am. Dec. 695, 'does not and is not required to keep the money received upon the sale of goods of different consignors in separate and distinct parcels, but mingles all in a common mass and with the like funds of his own, from whatever source derived. In such ease he becomes at once a debtor to his principal and is liable to an action for the balance shown to be due by his account of sales, immediately after its rendition, and without any previous demand.’- Com. v. Steams, 2 Mete. [Mass.] 343, 348.”

In Keefauver v. Hevenor, 163 App. Div. 531, 148 N. Y. S. 434, 435, the court said:

“Only public officers and trustees, and not agents, factors, commissionmen, and the like are fiduciary debtors.”

In Haggerty v. Badkin, 72 N. J. Eq. 473, 66 A. 429, 425, the court said:

“I have already referred to the reasoning by which the courts have held that the ordinary relation between factor and principal was not fiduciary witbin the meaning of that word here involved. It is that those transactions are mercantile transactions in which the principal must have known that his factor would, in the ordinary course of business, mingle the money received from the sale of his goods with his own, and that the ordinary relation of debtor and creditor arose out of those transactions, and that it was not the duty of the factor to earmark or segregate the proceeds of the sale of his principal’s goods and remit at once. In fact, the ordinary course of business in such cases renders such restrictive dealing impracticable. The principal often obtains from the factor money in advance upon his goods, and the goods are not sold ordinarily in a lump, nor is the payment received in a single lump. The principal relies upon the personal responsibility of his factor.”

Among private trustees or trustees of implied trusts whose debts have been held not to be within the classification of fiduciary debts, are general agents to collect money (Ehrhart v. Rork, 114 Ill. App. 509); agents to make loans (Bracken v. Milner (C. C.) 104 F. 522, writ of error dismissed in [C. C. A.] 115 F. 1020); insurance agents (Boyd v. Agricultural Ins. Co., 20 Colo. App. 28, 76 F. 986); railroad ticket agents (Re Wenham [D. C.] 153 F. 910); brokers (Crawford v. Burke, 195 U. S. 176, 25 S. Ct. 9, 49 L. Ed. 147; Knott v. Putnam (D. C.) 107 F. 907; Re Gaylord [D. C.] 113 F. 131; Barrett v. Prince [C. C. A.] 143 F. 302); factors and commission merchants (Re Basch [D. C.] 97 F. 761; Re Adler [C. C. A.] 152 F. 422; Mathieu v. Goldberg [C. C.] 156 F. 541; Re Ennis & Stoppani [D. C.] 171 F. 755); naked bailees of money (Lewis v. Shaw, 122 App. Div. 96, 106 N. Y. S. 1012); warehouse-men (if the goods were not to be returned in kind) (Sumner v. Richie, 54 Iowa, 554, 6 N. W. 752).

Though the court recognizes the liberality with which exemption statutes are to be interpreted, in view of the language of the Supreme Court of Illinois'construing the Illinois statute and the reasoning in the eases cited defining fiduciary debts, it is impelled to conclude that the bankrupt may not select as exempt any part of the money represented in the claim against Bartlett Frazier Company.'

The report of the referee will, therefore, be approved, and the cause rereferred to him with direction to proceed in accordance with the conclusions herein noted..


author: PETERS, District Judge.

text:
    WHEELER v. LUMBERMEN’S MUT. CASUALTY CO. et al.
    No. 955.
    District Court, D. Maine, S. D.
    April 2, 1934.
    See, also (D. U.) 5 F. Supp. 193.
    Berman & Berman, of Lewiston, Me. (B. L. Berman, of Lewiston, Me., of counsel), for plaintiff.
    Robinson & Richardson, of Portland, Me. (Forrest E. Richardson, of Portland, Me., of counsel), for defendants.
   PETERS, District Judge.

Final decree in this case was filed December 19, 1933. On March 19, 1934, during business hours, a petition for appeal with assignment of errors attached was filed in the office of the clerk by the defendant Lumbermen’s Mutual Casualty Company, to which is appended an affidavit to the effect that an attested copy was served upon the attorney for the plaintiff on that date; it also appearing by letter on file with the clerk that on March 8, 1934, attorneys for the defendant had given written notice to the attorney for the plaintiff of intention to claim an appeal.

The petition for appeal was not presented personally to the judge on March 19th.' At the time when the petition was filed with the clerk, the judge of this court was in Boston, or proceeding to Boston, on official business. In the latter part of the afternoon on March 19th the judge while in Boston received a telephone message from counsel for the defendant stating that the petition for appeal had been filed with the clerk and that, finding the judge absent, counsel desired to know what could be done to preserve his rights. He was informed over the telephone that the judge would allow the appeal as of that date, March 19th, that counsel could so inform the clerk, and that the judge would sign the allowance of appeal as of that day upon his return.

Counsel for plaintiff was informed' by letter by the judge while in Boston that his undertaking to allow the appeal as of March 19th was simply to protect the rights of the defendant and was not an attempt to extend the time for taking appeal in ease the statutory limitation had expired. It is clear, of course, that the court has no authority to extend the time of appeal in any event.

On March 23, 1934, the plaintiff filed a motion to dismiss the appeal for various reasons, among others that the appeal was not properly taken within three months from the date of entering the final decree.

On March 28, 1934, a hearing was had on the motion to dismiss, and thereafter the appeal was allowed as of March 19th; the allowance being dated that day.

It seems to be clear that the defendant filed his application for an appeal in due season. . The statute says that no appeal shall he allowed “unless application therefor be duly made within three months.” 28 USCA § 230. In the case of Smith v. Gale, 137 U. S. 577, 11 S. Ct. 185, 34 L. Ed. 792, decided when the time for appeal was two years instead of three months, it was held that an appeal taken on May 25, 1888, from a final judgment entered May 25, 1886, was taken in time. Randall Co. v. Foglesong Mach. Co. (C. C. A.) 200 F. 741; U. S. v. Beaman (C. C. A.) 61 F.(2d) 493.

As to the matter of allowing the appeal nunc pro tunc, it seems to have been held in this circuit, in Green v. Lynn, 87 F. 839, that the filing of an appeal in the clerk’s office within the statutory period was not a sufficient compliance with the statute, unless the appeal was allowed during that time. The contrary seems to have been held in Randall Co. v. Foglesong Mach. Co. (C. C. A.) 200 F. 741. However, it should be borne in mind that the language of the statute in 1898, when the ease of Green v. Lynn was decided, was not the same as in the present statute. The former statute (28 USCA § 230 note) said that the appeal should be “taken or sued out,” within (at that time) six months. The present statute is as above quoted and explicitly refers to an “application for appeal.” Also in the case of Green v. Lynn the action of Judge Putnam in allowing the appeal was taken several months after the time had expired and did not purport to be nunc pro tune.

In the ease of U. S. v. Vigil, 10 Wall. 423, 427, 19 L. Ed. 954, judgment was rendered against the United States and an appeal was sought to be taken, but the clerk neglected to make an entry to that effect. The court, in ordering an allowance of appeal nunc pro tunc, used this language r

“The prayer for an appeal in due time, although not granted then by the court, secures this right, and no delay by the court in its allowance can impair it. The order nunc pro tunc contains the allowance.”

In Latham v. United States, 131 U. S. xcvii, Appx., and 19 L. Ed. 452, Mr. Chief Justice Chase delivered the opinion of the court:

“This is a motion to dismiss the appeal from the judgment of- the Court of Claims, on the ground that it was not allowed within the ninety days fixed by the statute.
“And it appears that the order of allowance was not made within the statutory time. But it also appears, on examination, that the prayer for allowance was within the time, and we have heretofore held that the order allowing the appeal must have relation back to the date of the prayer for allowance, and be considered as made on that day.
“The motion must therefore be denied.”

See U. S. v. Adams, 6 Wall. 101, 18 L. Ed. 792.

The difference in the language of the statute may be sufficient to reconcile the eases. However, the decision in Green v. Lynn, in this circuit, is no authority against the propositions here decided, viz.:

1. An application for appeal from a final decree entered December 19th is made within the three months’ statutory limitation if made on or before March 19th following.

2. In a case where the application for appeal is filed in the clerk’s office on the last day of the three months’ period, and, on the same day, called to the attention of the judge, then absent from the district, who undertakes to sign an allowance of the appeal as of that day upon his return and directs counsel to so inform the clerk, it is a sufficient allowance of the appeal if the stipulated action is taken by the judge a few days later upon his return to the district.

The motion to dismiss the appeal is denied.