and thereby rock the ,thus allowing the defendants' vibratable link the same motion allowed to the Graham link by his swivel joint, M.and, in my opinion, even if the proofs required that Graham should, in the construction of his patent, be limited to his special tlevices, I think the defendant: has adopted those special devices. I am therefore of opinion that no sufficient defense is made out in this case, and that the <lomplainal1ts are entitled to a decree for an accounting.
et aZ. ,f1. BLAKESLEY.
OirtJ'Ui' Oourt, D. Oonneoticut. February 22, 1888.)
PATlllNTl\ FOR INvJl:JiTION&-PATENTABILITY-PRIOn USE.
Letters patent No. 218.300; issued August 5, 1879, to William Mill. and Christian H. Hershey, for an improvement in hair·crimpers, the article con· sisting "essentially of a strip of soft, non·elastic metal. preferably fiat, covered with a fibrous coating, cemented thereto, so that when cut into proper lengths for use the ends will not fray 'out, " etc., are void, the evidence showing prior . public use of the patented article, by the defendant, for more than two years before for the patent. .
On bill for injunction. for defendant.
J08hua,Pusey, for plaintiffs. George D. Beymour and
entire length, SUbstantially as described. 2. The process of manufacturmg hair-crimpers by flrst lIattening soft metal 'Wire between rollers, then covering it with a braided fibrous coating, attached thereto by means of an adhesive substance, and afterwljords dividing the rna· !.erial into suitable lengths for halrooCrimperfl, substantially as, herein described."
SHIPMAN, J. .This is a bill founded upbn the alleged in:· fringemeJ;lt of letters patent No. 218,300, dated August 5,1879, to Will· iam Mills and Hershey, for improvement in hair-crimpers. The article consists, in the langUl!-ge of the patent, "essentially of a strip of soft, metal; preferably flat, co'vered with a fibrous coating, cemented thereto, so that,'when cut into proper lengths for use the ends will not.frll-Y out, but remain the same into whatever number of pieces the crimper may be divided." The claims are as follows: "1. A hairooCrimper consisting of the metallic core, C, and braided covering, A, said covering, A, being cemented to said core, C, throughout its
The infringing article consists of a brass wire within two strips of pa. 'per, the whole covered with a braided covering, the two strips of paper having been passed through a cementing mixture. before entering the braider. · The suit ineqnity of He:rahfJ!i etrat v. Howard M.Gileaand othe:ra, in the circuit court f<>r the Southern district of New York, which was decided by Judge WALLACE on April 10, 1885, involved this patent, and the same infringement. In that case the patentability of the.i,nvention,and
HERSHEY V. BLAKESLEY.
the infringement of the patent, were no,t controverted, the defense of prior public 'use, by the present defendant, of the patented article for more than two years before the ,application fora patent being the only defense which was relied upon. In that case, aainthis, thl;ldefendant introduced in regard to the manufacture by Blakesley, in the year 1876, in Bristol, Connecticut, of two kinds of hair-crimpers,-one by what is now called "the double cover process," by which a metallic core, covered first with cotton braid, was passed through a bath of dextrine, and was then covered with a silk braid; the other by what is now called "the bare metal process," by which a core of bare metal, having been passed through a bath ·of dextrine, was then covered with a single coat of braiding. Of the use by Blakesley of the double cover process there is no question, but Judge WALLACE was of from an inspection of the exhibits, that there was no appreciable adhesion between the covering and the core, and that the adhesion of the strands together, and not their adhesion to the core, was the objeqt which Blakseley had in view. Upon this trial anticipation of the invention. by the use of this process was not pressed. Two witnesses only, Blakesley and Wright, testified, in the New York case, that the former made crimpers by the" bare metal process. II This theory, Judge WALLACE thought, was refuted" by the omission of Blakesley and Wright to mention the fact in their affidavits used to oppose a motion for preliminary injunction in this case. These affidavits purport to give a full history of the manufacture of crimpers by Blakesley, and the omission to state what was so important, if true, is significant. No explanation has been given of the failure to state the facts." The only question which I shall consider is, whether the use of this process by Blakesley has been now shown, beyond a fair doubt, by the additional witnesses, and by all the testimony. When the motion for preliminary injunction was made in 1884, in the New York case, Wright, the predecessor of Blakesley in the crimper business, remembered the use of the bare metal process in 1876, and told Blakesley and the defendants' counsel of itj but Blakesley did not remember it with any clearness, and could not testify to it. The affidavits were, therefore, prepared by counsel, omitting all mention of this method, which intervened, for a very short period, between the" Wright process" and the double cover process. The Wright process consisted in covering a strip of metal with a braid, and then gumming with dextrine the long braided strip at the end of each crimper. When the depositions were taken, Blakesley had called to mind, or thought he had, the use of the bare metal process, and both he and Wright testified accordingly; but no explanation was given of the omission to tell this fact in their affidavits. The defendants' case, in the New York suit, rested upon the double cover process, which counsel apparently thought was a sufficient anticipation of the patent in suit. In this case, Robinson, IJewis, Hubbell, Sikes, Mitchell, Mrs. Gowdy, Carrington, Blakesley, and Wright,-the first five being new witnesses,-testify to the use of the bare metal process by Blakesley in 1876. And all except Lewis, Hubbell, and Mitchell testify to the use of the two processes. I disregard the testimony of Hubbell and
Mitchell, because, although they were at work in Blakesley's shop continuously;-the former during the year 1876, and the latter from the early part of1876 to the fall of1877,-they remember nothing sbout the double cover process, which, '.confessedly, was used before their eyes nearly all the time. The accuracy of a memory cannot, in my opinion, be relied upon, which remembers nothing of the ordinary, habitual process which was used continuously i 11 Cleir presence after the early part of May, 1876.. I disregard, also, the testimony of Carrington, because he was a witness in the New York case, and said at that time nothing of the bare metal process, although he thinks that he then recollected it. I think that he did not then recollect it, because he would naturally have mentioned the circumstance, either upon examination or cross-examination, ifit had been in his mind. This leaves the testimony of Robinson, Lewis. Sikes, Mrs, Gowdy, Blakesley, and Wright. Considering the testimony of Blakesley 88 not entitled to full weight, by reason of his interest, and of his non-recollection of a fact in his own business 'Yhich took place in 1876, I am impressed with the truthfulness of Wright, Robinson, Lewis, and Mrs. Gowdy. In the testimony of Sikes I see nothing to criticise, but it is generalin its character, and is not accompanied by a statement of circumstances which show why the process was noticed and remem· bered. The history which is detailed is this: After Blakesley commenced the crimper business, which seems to have been in the early part of 1876, he manufactured, for a short time, by the Wright process. He then, in the month of April and early part of May, used the bare metal process for a short time, not exceeding two weeks, perhaps not so long, and by this process manufactured and sold some fifty "great gross" of boxes. Each "great gross"oontains 144 small boxes, of a dozen crimpers each. On account of the liability of the silk covering to be stained by the dextrine, the doUble cover process was thereafter used until the fall of 1879, when it was suspended, and resumed in the early part of 1880, and continued until the fall of that year, when Blakesley failed in ness. I am fully.aware of the ease with which honest witnesses can persuade themselves that they remember some bygone circumstance which they are ingeniously induced to think that they remember; but, in this case, I do not perceive any manipulation of these witnesses, and I think that their testimony was not manufactured, and they were not mistaken. There is nothing improbable, either by reason of the state of the art, or of the character of the improvement, in the history which is given. The invention, after the Wright process had been used, was a very natural one. The bill is dismissed.
THE EDDYSTONE.! AMADON
(DiBtriet Gourl. E. D. Virginia. December 14. 1887.)
A laborer who went on board a ship to secure employment, but had not been actually employed. (it being the custom to employ laborers on the wharf,) three hours before the ship was ready to commence loading. was injured by the falling of a derrick which the crew were rigging up, and which was negligently allowed to fall. Warning had been given, but was not heard by the laborer, as he had not then gotten aboard the ship. On libel by him for persOllal injuries, held, that both were in fault, and the damages were divided, the estimate of damages, however, including only expenses and loss of time.
In Admiralty. Libel for damages for injury to the person. Sharp &: Hughes, for libelant. Harrrw.nson Heatlt, for respondent.
HUGHES, J. James O. Amadon, the libelant, was painfully injured on the 17th day of November, 1886, on board the English steam-ship Eddystone, which was making ready to take on cotton at Norfolk. He had previously spoken to William Welsh, acting chief of stevedores, in Norfolk, for employment in loading cotton, who had said to him that be would give him work on the next ship that would be ready to take on cotton. After this conversation the Eddystone was the next ship to come along-side of the wharf for the purpose of taking on a load of cotton. She had made fast, and was rigging her derrick, and getting ready to receive her cargo, when Amadon, seeing Welsh on the after-part of the deck of the Eddystone, stepped on board, and was moving towards Welshwlien the boom of the derrick, which some of the crew of the Eddystonewas hoisting tc) its place, made a sheer, became unmanageable, and fell! the end of it striking Amaclon while he was ascending a flight of steps which led in the dire<;tion of the place where he had seen Welch. His injuries were very severe, and for a time painful, and he was treated for several months in St. Vincent's hospital in this city, where he was nursed by the Sisters living in that institution, and treated by its physician. It is probable that he is permanently injured, and it is certain that he has not yet (December, 1887) recovered sufficient strength to engage in any work requiring active physical exertion. His libel is for damages for bodily injuries, for expenses incurred, and loss of time from work, and are laid at $10,000. The boom which fell, and was the instrument that produced the accident, belonged to one of the derricks of the Eddystone, which the boatswain and two of the crew were rigging and making ready for use in lifting cotton upon the ship. They were in the act of raising this boom when Amadon came on board the ship. When about to commence the raising of the boom, the boatswain cried
by Rob:rt M. Hughes, Esq.; of the Norfolk bar.