of the office was that "money paid in must be paid to the cashier"; that on the previous week the cashier had called his attention to the fact that parties were coming to the office and trying to have the deputies deviate from the order, and he had made a positive order reaffirming the rule.

[1, 2] This suit being to recover taxes illegally collected, the burden of showing a previous payment rested on the plaintiff, and inasmuch as the proof was that Lederer had never received the money, and had never authorized Wright to receive it for him, it is apparent Hurst has not made out a case against Lederer, unless the law itself makes Lederer's appointment of Wright deputy collector carry with it the right and authority to collect money. And it is here that, in light of the proofs, the plaintiff's case fails, for he cannot justify his alleged payment to Wright by the terms of the statute. That statute provides:

"Each such deputy shall have the like authority in every respect to collect taxes levied or assessed within the portion of the district assigned to him which is by law vested in the collector himself."

But the proofs show that Betts was the deputy to whom alone it could be contended this language applied, and that Betts was the man Lynch and Hurst meant to reach. Unfortunately, they did not find Betts, and in his absence the cashier was the only person to whom Hurst could pay his money, so as to bind Lederer.

Taking the most favorable view of the plaintiff's proofs as to what followed, it is apparent that Lederer was not in fault in any way, and that the loss that resulted to Hurst arose, not from anything Lederer did, or failed to do, but wholly from what Hurst did, or failed to do, and, where one or two innocent men suffer wrong, he must suffer whose acts or omissions caused the injury.

We are of opinion the record shows no error in giving binding instructions for the defendant.

THE BRANDON. THE FLORENCE OLSEN. ADAMS et al. v. HUTTON. (Circuit Court of Appeals, Fourth Circuit. April 2, 1921.)

No. 1860.

1. Collision 102-Both vessels held at fault.

Where vessels B. and O. collided when passing at night near nets laid in wartime for interception of submarines, both held at fault; the B., outward bound, being on the wrong side of the channel and undertaking to pass on the starboard side of the O., coming in, without making sure that the O.'s two-blast signal was for the B., and not for a patrol boat stationed at the nets, and the O. being negligent, in that the lookout thereon had left his post, and its pilot and master failed to observe the B.'s course and signals with care, which would have disclosed that the B. and a pilot boat preceding the O. had passed starboard to starboard, and that the B.'s course indicated her understanding the O. had signaled a like passage.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(273 F.)

2. Collision 76-Immediate stopping required, where signals not understood.

When proper observation would show to the master or pilot of a vessel in proximity to another that his signals have been misunderstood, he should immediately stop and reverse, until he ascertains that his signals are understood and assented to.

Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.

Libel by Charles F. Adams and others, trustees, etc., doing business under the name of the New England Fuel & Transportation Company, owner of the American steamship Brandon, against the steamship Florence Olsen, William E. Hutton, master and claimant, in which William E. Hutton filed a cross-libel. From a decree in favor of the Olsen, libelants appeal. Modified.

Edward E. Blodgett, of Boston, Mass. (Blodgett, Jones, Burnham & Bingham, of Boston, Mass., Floyd Hughes and Hughes, Vandeventer & Eggleston, all of Norfolk, Va., and Albert T. Gould, of Boston, Mass., on the brief), for appellants.

Leon T. Seawell, of Norfolk, Va. (Hughes, Little & Seawell, of Norfolk, Va., on the brief), for appellee.

Before KNAPP and WOODS, Circuit Judges, and ROSE, District Judge.

WOODS, Circuit Judge. On the night of September 22, 1918, the steamships Brandon and Florence Olsen collided off Old Point Comfort. A libel was filed by the owners of the Brandon and a cross-libel by the master of the Olsen. On depositions and testimony taken before the court, the District Court held the Brandon solely at fault, and rendered a decree in favor of the Olsen.

The Brandon, loaded with coal, was outward bound. The Olsen, light, was inward bound. Both vessels were properly lighted. The Olsen was navigated by a Virginia pilot. The master of the Brandon had a pilot's license and was navigating his own vessel. The collision was near the nets laid by the government for interception of submarines. A patrol boat, the Dempsey, was stationed at these nets to speak and identify both inward and outward bound vessels. Coming in were the Relief, a pilot boat, and behind her the steamer Olsen. The Brandon and the Olsen sighted each other when about a mile and a half apart, and each thereafter had full opportunity to observe the lights, and thus ascertain the location and course, of the other, and to take all precautions against collision.

[1] In our view, the officers of both vessels convict themselves of plain violation of the rules of navigation, and if the rules had been observed on either vessel the collision would not have occurred. The Brandon was on the wrong side of the channel, and this fault was all the greater, when it should have been obvious to her master that there were three vessels on that side, two of them incoming vessels with the right of way. Indeed, the master seems to have been confused

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 273 F.-12

as to his proper position and course. His excuse for taking the wrong course was that he mistook the pilot boat Relief for a tug and tow of the N. Y., P. & N. Railroad, and his contention is that safe navigation required him to take the course he did in order to allow the supposed tug and tow to take the course usually taken by such craft. Assuming all that he says to be true, he had no excuse for not knowing that the Relief was not a tug and tow, for the presence of tug and tow would have been plainly indicated to him by lights on the barges or other craft in tow. Contrary to the rule, the master of the Brandon undertook to pass the Olsen starboard to starboard, relying on a two-blast signal from the Olsen, to which he answered assent, as a signal intended for him. In this he was negligent, for he saw the patrol boat Dempsey, and he should have expected the Olsen and the Dempsey to exchange signals, indicating the side on which the Dempsey would cross the bow and come alongside the Olsen. He therefore was clearly at fault in undertaking the unusual starboard passage with the Olsen. without making sure that the Olsen's signal was for the Brandon and not the Dempsey.

No less obvious was the fault of the Olsen. The pilot saw the lights of the approaching Brandon a mile and a half away. After that first sight of the lights, neither the pilot nor any one else on the Olsen paid the least attention to the Brandon or her signals. The evidence leaves no doubt that the Olsen was moving at the rate of at least three or four knots an hour; the Brandon was moving toward her at a still greater speed. The Olsen's lookout had left his post and was doing some other work. Her master and pilot had their attention diverted at the same time by conversation with officers of the patrol boat Dempsey, which had come up on her starboard. Neither of them observed the movements or regarded the signals of the Brandon until almost at the very moment of collision. The excuse for all this negligence is that the Olsen had the right to expect the Brandon to pass port to port. The excuse is not good.

There were four vessels navigating near each other at night. The Olsen had signaled, either proposing or assenting to the Dempsey's approaching her starboard to starboard. Her pilot and master should have known that the master of the Brandon might take the starboard signal as intended for him, and should have observed the Brandon's course and signals with the utmost care. Had they observed at all, or if the lookout had been at his post, it would have been seen in ample time to prevent the collision that the Brandon and the Relief had passed starboard to starboard, and that the Brandon was taking a course indicating that her master had understood the Olsen to signal a like passage. [2] When proper observation would show to the master or pilot of a vessel in proximity to another that his signals have been misunderstood, he should immediately stop and reverse until he ascertains that his signals are understood and assented to. The absence of a lookout, uncompensated for by watchfulness of the pilot or master, was inexcusable, and clearly a proximate cause of the collision. We have stated the rule and cited some of the authorities in Standard Oil Co. v. Davies, Master, 272 Fed. 67, decided February 14, 1921. While the

(273 F.)

facts of that case are somewhat similar, on the vital points against the Olsen they are different.

We think the Brandon and the Florence Olsen both clearly at fault for the collision, and a decree will be entered accordingly.

Modified.

FICKLEN et al. v. HARDING.

(Circuit Court of Appeals, Second Circuit. April 13, 1921.)

No. 173.

Patents 328—1,098,792, for street pavement, void for prior use.

The Ficklen patent, No. 1,098,792, for street pavement, held void for prior public use of a pavement having all essential elements of that of the patent.

Appeal from the District Court of the United States for the Southern District of New York.

Suit in Equity by William E. Ficklen and Fred J. Klein against J. Horace Harding. Decree for defendant, and complainants appeal. Affirmed.

Suit is upon patent to Ficklen (application filed August 21, 1909, issued June 2, 1914), No. 1,098,792, for a "street pavement." Plaintiffs rely on claims 1, 2, 3, 6, and 7, of which the third claim describes the subject-matter with great particularity and is as follows:

"3. A pavement comprising an earth roadbed, a crust supported directly on said roadbed and comprising a plurality of concrete sections of relatively large area, separated from each other by expansion joints extending from the top of the pavement to the roadbed, and reinforcing means imbedded in and carried by and continuing along the concrete section at the joints which require reinforcement; said reinforcing means consisting of metal strips set into the upper surfaces of the concrete sections along the expansion joints."

After seeing and hearing numerous witnesses the trial court dismissed the bill; the final decree declaring merely that the letters patent in suit "are void." The opinion of Mayer, District Judge, found a prior use on the part of one Baker, such use consisting in the construction (for Wayne county, Mich.) of about a mile of concrete road on Woodward avenue, near Detroit, in AprilJune, 1919. He therefore did not consider any other defense, although several were urged below and are presented on this appeal.

W. H. C. Clarke and George H. Gilman, both of New York City, for appellants.

W. F. Guthrie, of Youngstown, Ohio, for appellee.

Before WARD, HOUGH, and MANTON, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above). Counsel for Ficklen present in argument the following description of the subject-matter of the patent in suit:

"A loose-foundation, expansion-jointed, creeping-section, single-course untopped concrete road having self-setting, substantially-component, soft-wearing reinforcements out of contact with the roadbed at the upper edges of those joints which require reinforcement."

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

For purposes of discussion only we accept this collection of laudatory phrases as the best that can be said for Ficklen's patent, as it issued, after a very stormy career in the Office. We may, however, state our opinion that Ficklen's disclosure, as filed in 1909, could not have merited from even the most friendly critic such a description as we have just quoted. If the patent has ever taken a form which justifies the claims now made for it, the transformation occurred only when the present claims were advanced; i. e., after 1912.

As for the disclosures and proposed claims as filed, we agree with the summary disposition of them made by the primary Examiner who rejected them as showing no invention over Coignet, 98,033. It may be true that Mr. Ficklen, or his solicitors, did not watch the rapidly advancing art, and amend claims and specification so as to capture some portion of it; but it is plainly true that he did not describe in specification or define in claims that for which he now demands protection until long after his filing date.

We have mentioned this only because the public use found by the court below occurred so soon before Ficklen filed his application. With the findings of fact made by the lower court we entirely agree, and it would serve no good purpose to rehearse the evidence. The result is that, several months before Ficklen filed any application, and several years before he described substantially that which is now said to infringe, the commissioners of Wayne county had and the public used a road substantially as described in the claim first above quoted.

It is said that this road, or so much of it as embodied what is said to be Ficklen's idea, was either an abandoned experiment or an experimental use. As to the law on these points, we need add nothing to our decision in Eastman v. Mayor, 134 Fed. 844, 69 C. C. A. 628.

But it is always true that the question whether a given use is experimental or not is one of fact, and we are of opinion that Baker's or Wayne county's use of the road in question had ceased to be an experiment before Ficklen's filing date. Whatever value there was in it was apparent, and favorably apparent, before that time; that it has not proved important is of no moment, and that it may have been superseded by later and better devices does not render the original use experimental, nor make out of it an abandoned experiment.

Appellant much relies upon the case of Warren v. Owosso, 166 Fed. 309, 92 C. C. A. 227. That case is to be read in conjunction with the subsequent decision of the same court in Young v. Burley, 200 Fed. 258, 118 C. C. A. 368. So read, they do hold that a use of paving for foot passengers was a distinct use from that of the same paving for vehicular traffic. We express no opinion on the foregoing doctrine, other than to point out that the Wayne county use of 1909 was in kind as well as in degree exactly that for which Ficklen's pavement was and is intended.

The decree appealed from is affirmed, with costs.