ant.

It may be we express no opinion-that there is here an acceptance of the employé status which would have some effect under some conditions, and that the language of assumption of risk would cover only those risks which do not come from negligence; but the words of release, from any and all damage or claim resulting in connection with, or arising from, Allen's presence on the engine pursuant to the contract, are as broad as could be made. Since, whatever his status, there would be no liability to him except for negligence, the repeated language of release could not be operative unless it included negligence; and hence, if for no other reason, it must be thus inclusively interpreted.

If the question were otherwise open, the majority of the court thinks that it is the necessary result of Robinson v. B. & O. R. R. Co., 237 U. S. 84-90, 35 S. Ct. 491, 59 L. Ed. 849, that the agreement to observe

1 Release.

Know all men by these presents that I, G. F. Allen, of the Chicago Lubricator Company, desire said Erie Railroad Company to permit me to ride on its engine, and permission to do so has been granted on the following conditions:

First-That I will use the transportation and permission to ride said engines and trains in

connection with the business of the Erie Rail

road only, and not for personal affairs or for the making of pleasure trips.

Second-That in using such transportation I will conform as closely as possible to the rules and regulations of the Erie Railroad Company promulgated for its employés in engine and train service.

In consideration of the permission of the Erie Railroad Company to ride said engines and trains, I hereby release said company and all companies leased, operated, controlled by, or allied with it, and each of them, together with their, or each of their, successors and assigns, from any and all damages which may result in me in connection with riding said engines and trains or the use of said permisson and transportation, which have been given by said Erie Railroad Company solely in consideration of the execution of this release by me, and I hereby assume each and every risk and damage incident to such permission.

I further certify that I am familiar with railroad operation and understand fully the dangers and hazards and risk incident to riding on all trains, including freight trains, and also on engines, and I hereby assume the risk of same and release said company and each of them from all claims arising in any manner from such riding of trains or engines.

In witness whereof I have hereunto set my hand this 15th day of June, 1923. [Signed] G. F. Allen.

The other allegations of error we have examined, but find nothing which we think well taken.

The judgment is affirmed.

STANDARD PARTS CO. et al. v. CLEVELAND WELDING & MFG. CO. (Circuit Court of Appeals, Sixth Circuit. December 12, 1924.)

No. 4055.

Patents 328-1,153,481 and 1,153,482, for driving connections between felly and rim of automobile wheel, held anticipated and lacking in invention.

Bryant's patents No. 1,153,481, claims 2, 5, 7. and No. 1,153,482, for improvements to driving connections between felly and auxillary tire carrying rim of automobile, held anticipated, and, if in part not anticipated, to involve no invention as to such part.

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

Suit by the Standard Parts Company and another against the Cleveland Welding & Manufacturing Company. From a decree of dismissal, plaintiffs appeal. Affirmed.

A. V. Cannon and B. M. Kent, both of Cleveland, Ohio, for appellants.

Charles E. Brock and Hull, Brock & West, all of Cleveland, Ohio, for appellee. Before DENISON, MACK, and DONAHUE, Circuit Judges.

PER CURIAM. The issues and facts in this case will be found fully stated in Judge Westenhaver's opinion, 291 F. 820. Without determining other questions, it suffices to say that, on the conceded priority of Booth's invention, we concur in his conclusions both as to the three claims in Bryant's first patent, No. 1,153,481, and as to all of the claims of his second patent, No. 1,153,482. Referring to the former, Judge Westenhaver says: "Bryant's supposed invention-his step forward, if any, in the art-consists wholly in refraining from severing the lugs at the sides. This is an exceedingly narrow base upon which to rest a claim of novelty,

and still more so to rest a claim of invention. It is the mere shadow of a shade of an idea."

Referring to the second patent, he says that this "differs from the first patent only in that the single driver of the demountable rim is also made by stamping it integrally from the rim, instead of by riveting or welding thereto a plate, such as is shown in the first patent. This reversal of positions is plainly within the skill of the ordinary mechanic. It is disclosed and claimed by Tischbein. It is likewise disclosed and claimed in claims 6 and 7 of Booth; in fact, these claims 6 and 7 were claims 8 and 9 of the first Bryant patent and were added thereto during the pendency of Bryant's application, as a result of an argument made by his solicitor that such a reversal of positions was clearly within the scope and purport of his original drawings and specifications. Hence, as to the second patent, any question of novelty or invention resolves itself into the method of depressing or stamping this driving connection or lug from the metal of the rim or felly and severing its juxtaposed edges so as to form abrupt shoulders, to engage and co-operate with the abrupt shoulders of the two similar spaced driving connections. Obviously, if Tischbein, Wagenhorst, or Booth had taught

or disclosed the idea of practice of making the two spaced driving connections by stamping or embossing projections upon or from the felly or rim and integral therewith, no invention is present in applying the same process to any part of either the felly or the rim. Certainly, in view of the teachings and disclosures of Tischbein, Wagenhorst, and Booth, no invention is present in either of them [the Bryant patents]. No new or different result is obtained by Bryant. The lugs perform no new and different function over the lugs of the prior art. They do not perform it in any materially better way. In forming these lugs, he has merely used a different die from that required to stamp the lugs disclosed by the Booth patent drawings. In so doing, he has at most merely carried slightly forward or made more specific the teaching of Tischbein, Wagenhorst, and Booth. As compared with Booth, the most that can be said is that he has refrained from severing the sides of the lug from the material of the wheel felly. This advance or step forward is, it seems to me, such only as would naturally suggest itself to the skilled mechanic. Whether it should be done one way or the other is probably more a shop expedient than a new idea. In the language of Mr.

Justice Bradley (107 U. S. 200, 2 S. Ct. 231, 27 L. Ed. 438), this is a 'shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled me chanic or operator in the ordinary progress of manufactures.'" Decree affirmed.

TRAMMELL v. UNITED STATES. (Circuit Court of Appeals, Fourth Circuit. October 29, 1924.)

No. 2275.

Intoxicating liquors 223(1)-Proof of unlawful possession of less quantity than charged will sustain conviction.

Under an indictment charging defendant with unlawful possession of a stated quantity of whisky, proof of possession of a smaller quantity will sustain a conviction.

In Error to the District Court of the United States for the Western District of South Carolina, at Greenville; Henry H. Watkins, Judge.

Criminal prosecution by the United States against John H. Trammell. Judgment of conviction, and defendant brings error. Affirmed.

James D. Poag, of Greenville, S. C. (Bonham, Price & Poag, of Greenville, S. C., on the brief), for plaintiff in error.

Joseph A. Tolbert, U. S. Atty., of Greenville, S. C.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

PER CURIAM. Defendant was convicted on an indictment charging unlawful possession of 2/2 gallons of illicit whisky. The indictment also charged a former conviction, which was admitted.

On December 8, 1923, federal prohibition officers and a state constable, under authority of a search warrant, searched a barn and an old distillery building on the land of defendant. The search warrant was secured because officers passing Trammell's house had their suspicions aroused by the large number of parked automobiles and the crowds of men often gathered about the barn. His explanation was that the men came to look at his fine blooded bull. In the barn under a pile of straw the officers found a 5-gallon jug about half. full of corn whisky. They also found a gallon jug containing a small quantity of whisky. Defendant at the time of the search was intoxicated. He denied any knowledge of the whisky found. He testified that he owned

that he did not know and attempted to drive off. Lister arrested him and removed the key from the car switch. Then he flashed his light from the front seat on the ginger in a crate in the rear. The officers had no search warrant for F. D. Smith's car, and it was necessary to use a flashlight to see the ginger in the crate on the rear floor.

[1, 2] There was no chemical analysis of the ginger. Four officers testified that they were familiar with the brand, and that it was intoxicating and fit for beverage purposes. The defendant offered no testimony on this or any other subject. The statute does not require that the illegal content of bottles shall be proved by chemical analysis. A search implies some exploratory investigation. It is not a search to observe that which is open and patent, in either sunlight which is open and patent, in either sunlight or artificial light. Surely, under the circumstances, it was not an unreasonable search to turn a flashlight on an open automobile.

Affirmed.

2. Receiving stolen goods 8(4)-Guilty knowledge may be inferred from surrounding circumstances, but not from mere failure to make inquiry.

Knowledge or belief of receiver of stolen goods that goods were stolen may be proved by evidence of facts and circumstances surrounding transaction from which inference of guilty knowledge would necessarily follow, but such inference cannot arise from mere failure to make inquiry.

In Error to the District Court of the United States, for the Western Division of the Northern District of Ohio; John M. Killits, Judge.

Louis Silverman was convicted of knowingly receiving stolen goods, and he brings error. Reversed and remanded.

T. R. Hamilton, of Lima, Ohio (Curtis T. & Ben W. Johnson, of Toledo, Ohio, on the brief), for plaintiff in error.

Geo. E. Reed, Asst. U. S. Atty., of Toledo, Ohio (A. E. Bernsteen, U. S. Atty., of Cleveland, Ohio, on the brief), for the United States.

Before DONAHUE, MACK, and KNAPPEN, Circuit Judges.

DONAHUE, Circuit Judge. [1,2] In a defendants with unlawfully receiving, buyprosecution under an indictment charging defendants with unlawfully receiving, buying, and having in his possession certain goods and chattels stolen from an interstate in interstate commerce, knowing the same to shipment of freight in course of shipment have been stolen, the burden is upon the government to prove that the accused, at the time he received, bought, or kept the same in his possession, had knowledge or belief they were stolen. Katz v. U. S. (C. C. A.) 281 F. 129. This element of the offense may be proven by evidence of facts and circumstances surrounding the transaction, from which the inference of guilty knowledge would necessarily follow. It is error however, for the trial court to charge that "all the government need to prove to a reasonable certainty here is that the defendants, to whichever one of them you find the evidence applies, had knowledge that the goods coming into his possession were not coming in a way to make his possession rightful," and that, "if either defendant was surrounded by circumstances which, in your judg ment, as you understand him and see him, should have advised him that the man who was attempting to clothe him with possession had a title so doubtful that he, the defendant, was put upon inquiry to find out where the man so attempting to clothe him ⚫ acquired his title, with possession

and that with his eyes open to this suspicious circumstance demanding an inquiry, he failed to make any inquiry but doggedly went to work against the impulse of these circumstances and reduced these tires to his possession, he must take the consequence." Hagan v. U. S. (C. C. A. 6) 295 F. 656,

decided since the trial in the instant case.

No other error intervened in the trial of this case to the prejudice of the plaintiff in error.

The judgment is reversed for error in the charge as above stated, and this cause is remanded for further proceedings and trial in accordance with this opinion.

MULLINS et al.

tract between them, which undertook to cover that subject. It was the company's con

vember 14, 1924.)

No. 4058.

Mines and minerals 109-Statute relating to operation of mines held not applicable to contract for mining.

Ky. St. 2726-5, providing that mine workmen shall give the foreman certain specific notice as to timbers, which affects the rights of miners in case of injury, held not applicable to a subcontractor, who employed his own miners, as between him and the general operator, which was required by the contract to furnish timbers known to be necessary.

In Error to the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.

Action at law by Paul Mullins and A. D. Mullins against the Ford Elkhorn Mining Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

J. J. Moore, of Pikeville, Ky., for plaintiff in error.

E. J. Picklesimer, of Pikeville, Ky. (Picklesimer & Steele, of Pikeville, Ky., on the brief), for defendants in error.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

PER CURIAM. Through lack of proper timbering, the roof of the mine where they were working so collapsed that Mullins Bros. were unable to continue their contract with the mining company, by which they were to receive a ton price for removing the pillars in No. 2 mine and delivering the coal on track above ground. They were to set the timbers; the company was to furnish them. They had judgment in this suit for their damages for the loss of their contract. The substantial trial dispute was whether the breach was theirs in not setting, or the company's in not furnishing, the necessary and fit timbers. This question was fairly submitted, and found for plaintiffs.

The only error saved and assigned is that the court refused to treat the timber-furnishing duty as governed by Kentucky Statutes, § 2726-5, which provides that the workmen must give the mine foreman certain specific notice as to timbers. This statute declares the duties of the mine operator, by nonperformance of which he would become subject to the penalties imposed, and it affects the rights of the miners in case of accident. It does not directly touch the relations between a general operator and a subcontractor who employs his own workmen, and it should not be imported into a con

timbers which it knew were necessary, and in its pleadings it had claimed that it had furnished all proper timbers, but plaintiffs had failed to set them.

Judgment is affirmed.

SUMMERS v. ATCHISON, T. & S. F. RY. CO. (District Court, E. D. Missouri, N. D. October 1, 1924.)

No. 205.

1. Railroads 62-Railroad's use of property for collecting and holding of water supply "public use."

Railroad's use of property for collecting and holding water supply is "public use" within Missouri doctrine that railroads are public highways whose lands are devoted to public use. recognized in Rev. St. Mo. 1919, §§ 9870, 9877.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Public Use (In Eminent Domain).]

2. Abandonment 3-Intent and relinquishment of possession essential to abandonment.

To constitute abandonment, there must be intent to relinquish without intent to repossess, followed by actual relinquishment to the extent that the property is left free to be appropriated by others.

3. Railroads 82 (2)-Evidence held insufficient to establish railroad's abandonment of land.

Evidence held insufficient to establish abandonment by railroad of land acquired for purpose of collecting and holding water supply. 4. Abandonment 4-Nonuser does not constitute abandonment.

Mere nonuser does not constitute abandonment.

5. Limitation of actions 3 (2)-Statute exempting certain lands from purview of statute of limitations held not impliedly repealed by subsequent statute.

Rev. St. Mo. 1919, § 1314, enacted in 1866, declaring lands devoted to charitable or public uses not within statute of limitations, held not impliedly repealed by 30-year statute of limitations, section 1311, subsequently enacted. 6. Statutes 159-Statute to supplant earlier one must be clearly repugnant and susceptible of no other construction.

For statute to supplant a previous one, it must be clearly repugnant; such legislative intent being not assumed if any other construction can be given the later act.

7. Statutes 158-Not deemed repealed by implication if consistently avoidable.

Statute will not be adjudged repealed by

implication if it can be consistently avoided. 8. Courts 366(1)-Federal courts follow state courts' decisions affecting repeal of state statutes.

Where state courts have treated statute as

continuing in effect, federal court must decline to hold it repealed by implication by statute enacted prior to such state decisions.