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3 F.(2d) 798

et seq.), which would illuminate for a distance of 200 feet, but which were dimmed in conformity with a city ordinance. Held that, being unable to see the crossing from where they stopped, it was their duty, in the exercise of ordinary care, to turn on the full light, and that their failure to do so constituted contributory negligence on the part of both as matter of law.

In Error to the District Court of the United States for the Middle District of Pennsylvania; Charles B. Witmer, Judge. Actions at law by Russell B. Phillips and Hazel Phillips, his wife, and by Russell B. Phillips, against James C. Davis, Agent. Judgments for defendant, and plaintiffs bring error. Affirmed.

Joseph O'Brien, W. J. Fitzgerald, and Edward J. Kelly, all of Scranton, Pa., for plaintiffs in error.

trial court entered judgments of nonsuit on the ground of contributory negligence. On this writ the plaintiffs assign error in the court's action of finding contributory negligence as matter of law.

The plaintiffs cannot be exonerated from the charge of contributory negligence on the ground that the night was dark and rainy and the street was wet, nor on the ground that they were required to observe the dimmer ordinance of the City of Scranton. They were bound to operate the car with due regard to these conditions and to the ordinance as well.

The Supreme Court of Pennsylvania said in Serfas v. L. & N. E. R. Co., 270 Pa. 306, 113 A. 370, 14 A. L. R. 791, that it is the duty of one "traveling by night to have such a headlight as will enable him to see in advance the face of the highway and to discover grade crossings, or other obstacles in his path, in time for his own safety, and to keep such control of his car as will en

Paul Bedford, of of Wilkes-Barre, Pa. (Lewis E. Carr, of Albany, N. Y., and Walter C. Noyes, of New York City, of counsel), for defendant in error. Before BUFFINGTON, WOOLLEY, and able him to stop and avoid obstructions that DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge. Phillips and his wife were driving along a street in Scranton on a dark, rainy night with lights on their automobile in conformity with the Pennsylvania Acts of July 7, 1913 (P. L. 672, § 13), and June 30, 1919 (P. L. 678; Pa. St. 1920, § 964 et seq.), requiring that at night every motor vehicle shall be equip ped with "at least two white lights [which

are] visible not less than 200 feet in the direction in which the motor vehicle is proceeding" and which illuminate the road for that distance and also in conformity with the Ordinance of the City of Scranton of 1915 (No. 64) requiring that automobile lights shall be "properly shaded or dimmed so as not to blind or dazzle other drivers on the highway." According to their testimony, they approached to within twenty-five feet of an unguarded railroad crossing, wellknown to them. There they stopped, looked and listened in obedience to the law of Pennsylvania in this regard. Not seeing or hearing anything, Phillips put the gear into "low" and started the car toward the track. After going about ten or fifteen feet he discovered that the crossing was obstructed by a standing freight train, without lights at this point. Swerving quickly to the right he drove the car into the train, wrecking the car and causing serious injury to the occupants. At the trial of the two actions, one brought by the wife with her husband and the other by the husband alone, the learned

fall within his vision.

We have

never held darkness an excuse for failure to

perform this absolute duty." Besides requiring proper headlights the law imposes they stopped twenty-five feet from a known the duty of properly using them. If, when with their low lights, the circumstance of railroad track, and, looking, saw nothing darkness and proximity to a point of danof turning on the full lights for a moment. ger should, have suggested the ordinary care This duty, in the situation, was paramount

The two duties were not in conflict. to that of observing the dimmer ordinance. Increasing the light was but a natural precaution, yet it was one which involved the propof care which the law required in the cirer use of lights and, accordingly, the degree

cumstances.

Assuming that, under the Pennsylvania Act of March 20, 1845 (P: L. 191), and under the Ordinance of the City of Scranton (No. 6), the railroad company was negligent in allowing its train to block the crossing for an unreasonable length of time, whether such negligence be prima facie or negligence per se (Crowley v. P. R. Co., 231 Pa. 286, 80 A. 175; Todd v. Railway Co., 201 Pa. 558, 560, 51 A. 332, 33 Cyc. 931), the proximate cause of the accident was obviously the lack of care exercised by the plaintiff driver and by his wife, who, taking part in his conduct, "joined [him] in testing a danger which she knew." This was contributory negligence on the part of both. Senft v. Railroad, 246 Pa. 446, 92

A. 553; Wachsmith v. Railroad, 233 Pa. 465, 82 A. 755, Ann. Cas. 1913B, 679, distinguished from Clamper v. Philadelphia, 279 Pa. 385, 124 A. 132, on the facts. The judgments below are affirmed.

GILDEA v. CURTIN et al. (Circuit Court of Appeals, Fourth Circuit. January 13, 1925.)

No. 2300.

Principal and agent 78 (6)-Evidence held sufficient to sustain finding that fire insurance business secured by defendant was included within agency contract.

In action by insurance brokers for account ing for profits earned by defendant as agent, evidence held sufficient to sustain finding that

fire insurance business secured by defendant was included within agency contract.

Appeal from the District Court of the United States for the District of Maryland, at Baltimore; Morris A. Soper, Judge.

Suit by William W. Curtin and others, copartners trading as Johnson & Higgins, against John H. Gildea, Jr. Decree for plaintiffs (2 F.[2d] 865), and defendant appeals. Affirmed.

R. E. Lee Marshall, of Baltimore, Md. (Brown, Marshall, Brune & Parker, of Baltimore, Md., on the brief), for appellant.

W. Calvin Chesnut, of Baltimore, Md. (Haman, Cook, Chesnut & Markell, of Baltimore, Md., on the brief), for appellees.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

WADDILL, Circuit Judge. The bill of complaint in this case was filed on behalf of the appellees, as plaintiffs, against the appellant, as defendant. The bill alleged, among other things, that the appellees were partners in the firm of Johnson & Higgins, and as such were engaged in the general business of insurance brokerage, having their principal office in New York City; that the partnership had, from 1892 until March 30, 1923, employed the appellant as their Baltimore agent under a contract of employment by which the appellant was to act as local agent in respect to their business generally, including fire insurance, and as such agent was to receive a salary and a proportion of the net earnings of the office; that during the period from January 1, 1906, to March 30, 1923, inclusive, the appellant had earned large profits from fire

insurance business done by him, but had failed to report the same to the appellees, or to remit the proportions of net earnings thereon which they were entitled to receive under the contract, as above stated. The bill prayed for an accounting, and for the payment to the appellees of the amounts ascertained to be due to them as a result of such accounting.

The appellant denied that the contract of agency from January 1, 1906, to March 30, 1920, included the local fire insurance business; that is to say, business relating to fire insurance on property located in Baltimore and owned by residents in Baltimore. He admitted that he had carried on such business and made profits therefrom during the said period, but stated that he had conducted this business on his own account, and had assumed the proportion of the expenses of the office applicable thereto, and had retained all the profits therefrom. Appellant further admitted that the business was conducted under his original agency contract of June 5, 1892, until the receipt of the letter from the Association of Fire Underwriters of Baltimore City of February 16, 1906; that the business included fire as well as marine insurance, and that during that period he regularly made return to his principals of the proceeds arising from both; and that from and after January 1,

1906, he treated the fire insurance business as his own, and made no accounting of the profits arising therefrom, since he alone was interested therein-the plaintiffs, appellees herein, being thereafter forbidden to conduct that business in the city of Baltimore, of which appellees were given due notice.

The case was submitted on bill and an

swer, and turns largely upon questions of fact that is, the ownership of the agency, and who was entitled to the profits thereof, and particularly that arising from the fire insurance; what interest, if any, appellees had therein; whether notice was given by appellant to appellees of any change in the business affecting the fire insurance as originally conducted; and whether an accounting should be required of appellant in connection therewith. Testimony was taken orally before the court, and upon full consideration thereof the court found as a fact that all of the business conducted by the appellant from and after January 1, 1906, to March 30, 1923, was covered by and included within the contract of agency. The court further found that the facts generally

8 F.(2d) 801

supported the contention of appellees, and that notice was not given to appellees of the change in terms under which the business was being conducted, and accordingly decreed an accounting. The parties subsequently entered into a stipulation in lieu of an accounting, and the court thereafter entered a decree against the appellant in favor of the appellees for $113,499.46. From the decision thus rendered, this appeal was

taken.

The assignments of error, with the exception of certain rulings on the admission of testimony, because alleged to be hearsay and irrelevant, relate almost entirely to the determination of the facts, and the weight to be given by this court to the findings of the trial judge, who saw and heard the witnesses testify. We have examined the record with much care, and feel that the action of the District Court is free from error, both in its rulings on questions of law, and its determination of the facts in issue. 2 F. (2d) 865. We do not wish to add anything to what is said, as the opinion covers the case in a comprehensive and clear manner, and we are in full accord therewith. The decree of the District Court will be affirmed, with costs. Affirmed.

ALEXANDER et al. v. BELSON. (Circuit Court of Appeals, Seventh Circuit. December 17, 1924.)

No. 3399.

Patents 328-1,384,035, for cooking utensil,

held void for want of invention.

The Alexander patent, No. 1,384,035, for a cooking utensil, claims 1, 2, and 3, held void for want of invention.

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

Suit by Herman L. Alexander and David Goldstein against David Belson, doing business as the Belson Manufacturing Company. Decree for defendant, and complainants appeal. Affirmed.

Joshua R. H. Potts, of Chicago, Ill., for appellants.

Chas. O. Shervey and Max M. Korshak, both of Chicago, Ill., for appellee.

EVAN A. EVANS, Circuit Judge. Claims 1, 2, and 3 of patent No. 1,384,035 were, by the District Court, held invalid for want of invention. They read:

"1. In a device of the class described, the combination of a receptacle open at its upper end, and a cover comprising a deep dome-shaped portion, and laterally extending means about the outer edge of the domeshaped portion for supporting the cover upon the receptacle, said cover being adapted to serve as a mixing bowl.

"2. In a device of the class described, the combination of a receptacle open at its upper end, and a cover comprising a deep, dome-shaped upper portion, and a laterally extending rib about the outer edge of the dome-shaped portion, adapted to support the cover upon the receptacle in either the normal upright position or in inverted position to serve as an auxiliary bowl.

"3. In a device of the class described, the combination of a receptacle open at its upper end, and a cover comprising a conical, dome-shaped portion, a cylindrical portion forming an extension of the dome-shaped portion and adapted to fit within the upper end of the receptacle, a laterally extending rib formed between the dome-shaped portion and the cylindrical portion serving to support the cover upon the receptacle, and means to support said cover inverted on the table."

The cooking art is extremely old, and interest in it is universal. At some stage of life, all are brought into rather intimate contact with cooking utensils. Judicial knowledge may therefore extend further in this than in some other arts. Certainly the lids of wash boilers, tea kettles, and such structures are not beyond the ken even of judges. The prior art, as disclosed by the record, as well as that of which the court may take notice, discloses cooking utensils with "dome-shaped covers." Indeed, it might be harder to call to mind a cooking utensil with a cover not more or less domeshaped.

The only asserted novelty in the structure of the patent must be found in the word "deep." The purpose of the "deep domeshaped cover" is disclosed by the specifications, which read:

"It is the principal object of my invention to provide a new and improved form and arrangement of parts, whereby the lid or cover is adapted to be used in an inverted position as a container for mixing or

Before ALSCHULER, EVANS, and any other desired purpose, and whereby PAGE, Circuit Judges.

means is provided for supporting the cover

3 F. (2d)-51

from tipping, either when in position on the body of the utensil or when on a flat table."

The word "deep" probably should be read in the light of this avowed purpose, for in the absence of any explanation it is uncertain, indefinite, and meaningless. At best, the word "deep" is a relative term. Certainly difficulty would be experienced in distinguishing between infringing and noninfringing devices, if the word "deep" cannot be defined either by its purpose or in some other way.

If the purpose be sufficient to define the word "deep," these claims cannot be upheld, because of the prior art. Tops on numberless cooking utensils old in the art would serve the same purpose. On the other hand, if the word "deep" can be given another meaning (one suggested by counsel on oral argument), so that the retention of steam and its condensation may be secured, no different conclusion can be reached, because "deep," as so used, would be incapable of definition sufficiently accurate to permit of an intelligent determination of its infringement.

It may be said that, the deeper the dome, doubtless the more the steam would be condensed and retained; but to a certain extent condensation would result in case of any inverted dome-shaped top or lid. Claim 3 does not even require the dome of the cover to be deep. To make it conical would not be invention. The evidence showing extensive use of appellant's device is, of course, entitled to weight; but it is not persuasive, and upon all of the evidence we agree with the District Judge that the claims are invalid for want of invention. The decree is affirmed.

POWERS v. SILBERMAN et al. (Circuit Court of Appeals, Third Circuit. February 14, 1925.)

No. 3190.

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Joseph E. Stricker and Samuel G. Meisterman, both of Newark, N. J., for appellant. William Harris, of Newark, N. J., for appellees.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge. [1] The question involved in this case in bankruptey is whether Harry L. Powers, the alleged bankrupt, was a "person engaged chiefly in farming or the tillage of the soil." On his petition to dismiss, on that ground, the bankruptcy proceeding filed against him, the special master held that he was not so engaged, and recommended he be adjudged bankrupt. On certificate, the court approved this action of the master, whereupon Powers took this appeal.

The facts are really not in dispute and the question is the inference to be drawn therefrom. The only testimony adduced was that of Powers himself, which was not only uncontradicted, but he offered to prove the same facts by several of his neighbors. These the master declined to hear, on the ground such evidence was simply cumulative. His own proofs showed that for 12 years he had lived on and farmed a tract of 100 acres, two-thirds of which he owned, and his wife the residue; that on parts of it he raised truck, hay, and pasturage, and part was uncultivated; that at times he employed from one to five men; that his farming implements were from $2,000 to $3,000 in value; that he had, at times, up to 12 horses and 4 cows; that he sold or exchanged hay,

1. Bankruptcy 68-Alleged bankrupt held truck, etc., to others, raised and sold toma"engaged chiefly in farming."

Alleged bankrupt held person engaged "chiefly in farming," and not subject to be adjudicated a bankrupt.

2. Bankruptcy 68-Incurring of indebtedness outside farming held not alone to deter

mine whether alleged bankrupt is "engaged

chiefly in farming."

Though indebtedness incurred outside of farming may be used to show that alleged bank

toes for a canning factory, and generally lived the usual farmer life.

The issue was not whether he was engaged in farming-for without any contradiction whatever, he showed he was-but whether that was his chief occupation. He was a coèxecutor with his mother and sister in the management of his father's estate, which consisted of city property; but his

8 F.(2d) 803

work therein was only to collect rents which were paid chiefly by checks from tenants, who, under the leases, kept the property in repair. He had an interest in a neighborhood cannery, and for three or four months, until it burned down, took part in its management, buying up canning material from the neighborhood farms. He also bought stock in some enterprises, and served as vice president and director, but how much time or labor this took is not shown. During some of the time, probably due to his losses, his wife took boarders, and also started a tea room in their farmhouse, in which latter he assisted her. But during all these times, and in these matters, he

for her use, in violation of Act May 22, 1918,
$ 1e (Comp. St. 1918, Comp. St. Ann. Supp.
1919, § 7628e).

United States for the District of Maine;
Appeal from the District Court of the
John A. Peters, Judge.

Petition by Soteria E. Throumoulopolou for writ of habeas corpus. From a decree denying the writ, she appeals. Reversed and remanded, with directions.

John P. Deering, of Biddeford, Me., for appellant.

Frederick R. Dyer, of Portland, Me. (William B. Nulty, of Portland, Me., on the

made no change in his farming operations. brief), for the United States.

In these outside matters he incurred some indebtedness, much of which he paid off or secured, but some of which was owned by the petitioning creditors and was not paid. The fact that, as stated by him, these debts "did not arise out of the tilling of the soil," seemed to weigh heavily in the master's reaching his conclusion.

[2] But it will be observed the crucial question in this case is, not whether the alleged bankrupt incurred indebtedness outside of farming, but whether he was "engaged chiefly in farming." Of course, outside indebtedness is an element of proof, and may tend, in connection with other facts, to show that a man was chiefly engaged in other activities, and that he was not engaged chiefly in farming; but such indebtedness is, in itself, but an element to be considered, not a fact to alone determine, whether he is chiefly engaged in farming.

Being of opinion that at all times Powers has been engaged chiefly in farming, the judgment below is reversed, with directions to dismiss the proceeding in bankruptcy, at the cost of the petitioners here and below.

THROUMOULOPOLOU v. UNITED STATES. (Circuit Court of Appeals, First Circuit. February 3, 1925.)

No. 1820.

Aliens 54-Alien may not be deported on ground different from that on which he has been heard.

The Department of Labor is without authority to order an alien deported on ground, not charged in the warrant of arrest, and on which the alien has not had a hearing, that she entered on a passport not issued or designed

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

The

BINGHAM, Circuit Judge. This is a petition for a writ of habeas corpus. petitioner is an alien, a citizen of Greece, who came to this country in 1923, and landed at Providence, R. I., November 1, 1923. On April 12, 1924, the Second Assistant Secretary of Labor issued a warrant to the district director of immigration at Portland, Me., charging the petitioner with being subject to arrest and deportation to the country whence she came on three grounds: (1) That she entered the country "without a properly visaed passport"; (2) that she entered it by false and misleading statements; (3) that she was likely to become a public charge-and commanding the district director to take her into custody and grant her a hearing. After hearing, the district director of immigration, on May 17, 1924, made a report to the Department of Labor, in which he stated that on April 24, 1924, a hearing was had, at which the alien had counsel, that the warrant of arrest was read to her, and that no additional charges were made; that the alien did not gain admission "by false and misleading statements made by herself"; that she was not a person "likely to become a public charge at the time of her entry," but that "she entered without a properly visaed passport"; and because of that he recommended she be deported.

The report having been forwarded to Washington, the Acting Secretary of Labor issued his warrant for her deportation, wherein he stated that he was satisfied on

the proofs submitted that the alien was "subject to be returned to the country whence she came under section 19 of the

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