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FEDERAL REPORTER.
of handwriting, will not be permitted, but, when introduced in aid of doubtful proof already offered, it may be allowed," (Benedict v. Flanigan, 18 S. C. 508,) and the question whether or not the evidence is so doubtful or conflicting, so as to admit this supplemental testimony, must be determined by the court, (Id. 509.) Mr. Greenleaf, discussing this question, volume 1, § 580, says that there is conflict between the American authority upon it. The conclusion which he derives from comparison of the authorities seems to be more certain than the rule adopted in South Carolina. "Such papers can be offered in the jury only when no collateral issue can be raised concerning them; that is, only when the papers are either conceded to be genuine, or are such as the other party is estopped from denying, or are papers belonging to the witness, who was himself previously acquainted with the party's handwriting, and who exhibits them in explanation or confirmation of his testimony." Ev. § 580. In Moore v. U. S., 91 U. S. 274, this rule is recognized. Were the testimony to be admitted upon the comparison with writing not conceded to be genuine, or which cannot be denied to be genuine, collateral issues would arise which would tend to confuse the jury, and to lead them away from the main issue. The objection is sustained. No other testimony having been offered connecting the defendant with the circulars, the jury were directed to find a verdict in his favor.
DUDGEON
v. WATSON and another. York. December 18,1886.)
(Circuit Oourt, S. D.
DUDGEON V. WATSON.
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of the valve-block as in the patent, but by being made to fit closely to the ram cylinder. The two methods are equivalent, and plaintiff's patent held to be infringed. In Equity. Action for infringement of patents for improvements in hydraulic jacks. Edmund Wetmore, (Phillips Abbott with him,) for complainant. Gharll!s N. Judson and James McKeen, for defendants.
COXE, J. This is an equity action for the infringement of two patents owned by the complainant. Both are for improvements in hydraulio jacks. The first, No. 137,765, was granted to the complainant, April 15, 1873. The second, No. 297,975, was granted to Riohard H. Dudgeon, May 6, 1884, and by him assigned to the complainant. The defenses are want of novelty and non-infringement. The patent of April 15, 1873, will first be considered. A hydraulic jack is a portable machine for lifting heavy bodies a. short distance. A ram works in a water-tiRht cylinder, and by the injection of water or other liquid, by means of a force-pump, into a chamber at the bottom of the cylinder, the ram rises, lifting the load. The ram is lowered by permitting the liquid to escape. Prior to the invention the lowering prooess was accomplished by means of a long, stiff wire connecting with the ingress valve in such a manner that, when the pump handle was depressed to its lowest limit, both the ingress and egress valves were opened, and a. continuous passage for the liquid was made from the ram cylinder back to the reservoir. In praotice it was found that this mechanism frequently got out of order, and the impossibility of lowering the ram was followed by the most aisastrous consequences. It was to remedy these annoying and dangerous defects, so detrimental to the usefulness of the wire jack, that the complainant invented the improvement in question. The object of the invention is to permit the liquid to flow freely from the ram cylinder through the egress valve, and around the ingress valve, not through it, as formerly, the intervention of any delicate or perishable mechanism. The wire is discarded. 'fhe new jacks have superseded the old ones in popular favor. The claims are as follows: "(1) The combinations and arrangement of the pump-plunger, constructed with longitudinal passages, the pump-barrel, and the reverse passage, substantially as before set forth. "(2) The combination and arrangement of the pump-plunger, the pumpbarrel with its reverse passage, the egress-valve. and the guard thereof, substantially as before set forth... When it is remembered that the description is addressed to thos6 versed in the art, there is no difficulty as to the proper construction of the first claim. It is for a sub-combination intended to be used in hydraulic jacks. Even though the method for tripping the egresli
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valve should be wholly unlike that described in the patent, even though the use of this valve should be rendered unnecessary by the introduction of other valved passages, still the patentee desired to secure the right to convey the liquid from the ram cylinder back to the reservoir, aronnd, instea.d of through, the ingress valve, by the described means. There is no reason why he cannot do this. !tis said that the patent is anticipated, or defeated for lack of invention, by the patent granted to' Worthington and Baker, April 3, 1849, for an improvement in direct-action pumping engines. The objeotof the by-passes in this apparatus is to relieve the steam-piston of the strain upon it by the pressure of the water in the pump-barrel; thus permitting the piston to oomplete its stroke freed from the resistanoe· of the water. The object of the Dudgeon invention, as has been seen,is very different. Indeed, though possessing some features in cODiwon,the two aredissiDiilar in appearanoe, operation, purpose, principle and result. The one might suggest the other to an inventor, b.ut not to. flo meohanic. It required a oreative faculty, not usually fonnd in the slow, non-peroeptive brain of the skilled workmen, to construot the hydraulic jaokof 1873 from the steam-pump of 1849. Assuming that the oonneot,ion between the two is as intimate as the defendants insist, it is, nevertheless, true that he who possessed the genius to· peroeive that the prinoipleof the one oould be utilized to· remedy the serious defeots of the other, was something more than a dexterous and intelligent automaton. For 24 years the impel'ieotions in hydraulio jaoks were known. For 24 years men of experienoe and capaoity had been endeavoring to remedy these imperfeotions. For 24 years the combination of the WOlthington and Baker steam-pump had been aocessible to an army of skilled mechanios. That the idea whioh occurred to Dudgeon never occurred to one of these is of itself a sufficient answer to the theory now advanced, in the light of accomplished facts, that the combination of the pump is an equivalent for the oombination of the jack. Without pausing to enter into a more minute and elaborate discussion of the Worthington and Baker referenoe, it suffices to say that the position taken by the complainant's expert witness, Mr. Ren wick, is sustained by the proofs; and the reasons assigned by him in support of his opinion seem entirely fair and logioal. As to the infringement of the patent there can be no doubt. The . defendants have seized upon the complainant's discovery, and have produced a jack which works in substantially the sarne manner, and accomplishes the same result by similar or equivalent mechanisms. Of course, there are differenoes in the two structures, but they are of form rather than of substance. There is no functional distinction. The defendants cut away more of the pump-plunger, and less of the pump-barrel, than the oomplainant. The methods of forcing the liquid around the ingress valve when the ram is lowered are iden-
251
tical, only instead of the longitudinal passages in the plunger the metal is cut away around its entire circumference, making a much wider channel. In the pump-barrel, on the contrary, instead of cutting the surface away around its inner periphery, as in the patent, the defendants, at the same point, substitute reverse passages bored through the wall of the barrel. The new apparatus is an improvement upon the old, but every feature of it is covered by the claims of the patent_ The defendants have widened in one place, and narrowed in another place, the complainant's channels, but they do not for this reason acquire the right to use tpe invention. The patent of May 6, 1884, remains to be considered. It is for an improvement upon the jack of 1873. In this patent the inventor has, speaking generally, accomplished what the infringing jack, just referred to, accomplishes. It is a more perfect machine. By the improved device a smoo.th bearing is given to the plunger or piston while taking its extended stroke when the ram is lowered. This is accomplished by boring the reverse passages in the walls of the independent internal cylinder in which the plunger operates. This cylinder is so constructed that it can be removed, and the apparatus which it contains renewed or repaired. The advantages over the 1873 patent may be summarized as follows: More perfect action, increased durability, greater ease in repairing, less difficulty in construction. The second claim, which is alone in controversy, is as follows: "The combination, with the hollow piston, E, and independent cylinder, C, provided with internal fluid passages, c, of the valve-block or plug, E, valve, e, and a packing, G, and nut or binding-piece, F, substantially as shown and described."
It is not seriously argued that the structure covered by this claim is anticipated, but it is said that, considering the prior patents, there was no invention displayed in producing it. In view of the conceded advantages of the improved jack, the fact that no prior patent suggests the entire combination of the second claim, and no skilled mechanic ever thought of the improvement, if a doubt existed upon this question, it should be resolved in favor of the patent. The defendants infringe. Prior to this suit they made the jack according to the formula of the complainant's patent, and the patent granted to the defendant Watson, July 15, 1884, shows the same construction of the independant cylinder, valve-block, etc. After the bill in this action was served the defendants made the changes by which they seek to escape infringement. In the defendants'structure a short section of the ram cylinder is cut off, and the internal cylinder is so cast as to fill up the space thus left; the result being that the latter is not supported by the screw-threads of the valve-block, as in the patent, but by being made to fit closely to the ram cylinder. The two methods are equivalents. The defendants' cylinder is "independent" in the flense of the patent. It performs all the functions
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that the Dudgeon cylinder performs. All the other are based upon or are incident to this unimportant change. It is very clear that the defendants accomplish all that the patent sought to accomplish, and by similar or equivalent means. There are some changes which, at first sight, seem important and substantial, but when analyzed are of form merely, and force the conviction, when the other circumstances are considered, that they were adopted simply and solely for the purpose of avoiding the com· plainant's patent. The complainant is entitled to the usual decree.
THE
UMATTILLA. 1 THE
O'BRIEN and others v.
UMATTILLA.
(DiBtrict Oowrt, No D. Oalijornia. December I, 1886.) SALVAGE-SEAMEN AS SALVORS,.-SUPEREROGATORY SERVICES.
When the master and the major portion of the crew have quitted the ship, renouncing all hopes of saving her, and a few of the crew have remained, In spite of the expostulations, and almost against the commands, of the master, to confront dangers which he and their companions have declined to encounter, and by so doing have saved the ship, justice, as well as the true interests of owners and insurers, demands that the courts should recognize, as a legal right, their claim to compensation as salvors for supererogatory services.
In Admiralty. Page &- Eells, (Arthur Rodger8, of counsel,) for libelants. Milton Andro8, for claimants. HOFFMAN, J. On the morning of February 9, 1884, the steam-ship Umattilla, Frank Worth, master, bound on a voyage from San Francisco to Seattle, struck on a rock of Flattery reef, some 12 or 13 miles to the southward of Cape Flattery. The captain, warned of danger by short blasts of the steam-whistle, had barely time to reach the deck, when he was felled by tbe shock caused by the striking of the ship upon the rock. He at once gave orders to the engineer to go ahead slowly, in order to prevent the vessel from sliding oft' the rocks, and foundering in deep water. The first officer was ordered to sound the forward hold. In his deposition the captain is made to say that the first officer reported 18 feet of water in this lower hold. This is evidently an error, perhaps clerical. There is no doubt, however, that on taking off the fore-hatch the hold was found full of water, and it was by all hands expected that the ship would speedily founder. 1 Reported
by Theodore M. Etting, Esq., of the Philadelphilf bar.
