Volume 295 — Federal Reporter

Action at law by E. Palmer Gavit against Roscoe Irwin, Collector of Internal Revenue for the Fourteenth District of New York, to recover income tax and penalties assessed against plaintiff’s income under Act Oct. 3, 1913 (38 Stat. 114), for the years 1913, 1914, and 1915, which was paid by him under protest. Judgment for plaintiff, and defendant brings error.

Action at law by the Bankers’ Trust Company and Erederick H. Pearce, executors of the will of John Glackner, deceased, against Frank K. Bowers, Collector of Internal Revenue for the Second District of New York. Judgment for defendant, and plaintiff appeals.

<p>In Error to the District Court of the United States for the Northern District of Texas; James C. Wilson, Judge.</p> <p>Action at law by Mrs. C. A. Gibson and others against the Sun Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of. Tennessee; J. W. Ross, Judge. ■</p> <p>Criminal prosecution) by the United States agiainst Walter W. Boyles. Judgment of conviction, and defendant brings error.</p>

Prosecution by the United States against Anthony Palma. On defendant’s motion to quash a search warrant and suppress evidence obtained by a federal agent.

<p>In Equity. Suit by the Piedmont Corporation against the Gainesville & Northwestern Railroad Company. On dependent bill by J. D. Patterson, receiver, against W. B. Veasey and others, for injunction.</p>

<p>At Daw. Action by the Boise Title & Trust Company against Evan Evans, Collector of Internal Revenue for the District of Idaho. Judgment dismissing complaint.</p>

<p>1. Appeal aid error ©=>1009(I^Presumption ¡n favor of findings of chancellor, who heard witnesses.</p> <p>Findings of fact by a chancellor, who saw and heard the witnesses, and . was especially qualified to weigh their testimony hy his knowledge of local conditions and customs, will not be overruled, unless clearly shown to be erroneous.</p> <p>2. Adverse possession <S=»85(4)=-Poss®ssioi of laid of adjoining owner held not adverse, fount ii recognition of his ownership.</p> <p>Possession by inclosure of a small parcel of land of an adjoining owner, though continued for many years, heW-, xmdeE the evidence, permissive and in recognition of the title of the legal owner.</p> <p>@E~>For other cases see samp topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Frank D'. Warn was indicted for making false entries, in violation of national banking laws. On demurrer to the indictment

<p>In Equity. Suit by the United States Fidelity & Guaranty Company against Frank C. Bramwell, Superintendent of Banks of the State of Oregon. Decree for plaintiff. »</p>

<p>In "Equity. Suit by Jacob Ruppert, a corporation, against the Knickerbocker Food Specialty Company, Inc. Decree for complainant.</p>

<p>Admiralty <S=>I2 — Libel to recover cost of lighterage held within jurisdiction of admiralty.</p> <p>A libel to'recover tbe cost of lighterage, which libelant was compelled to pay when the port authorities refused to allow the vessel to dock because she carried gasoline, which alleged that it was intended by the parties that libelant’s cargo should be landed on the dock without lighter-age expense, was within the jurisdiction of the court of admiralty, though libelant had paid the money to respondent, instead of to the lighterageycompany direct.</p> <p>^=s>Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Charles L. McKeehan, Judge.</p> <p>Matthew F. Griffin and others were convicted of conspiracy to defraud the United States, and bring error.</p>

<p>In Error to the District Court of the United States for the District of Nevada; EdVard S. Earrington, Judge.</p> <p>Criminal prosecution by the United States against D. Pincolini and J. Pincolini. Judgment of conviction, and defendants bring error.</p>

<p>In Error to the District Court of the United States for the District of Indiana.</p> <p>Action by the D. K. Jeffris Dumber Company against the Howard Shipyards & Dock Company. From a judgment for defendant, plaintiff brings error.</p>

<p>In Equity. Suit by the Indemnity Insurance Company of North America against the Empire Tube & Steel Corporation. On motion to direct receiver to recognize plaintiff’s lien claim, and to pay such claim before claims of general creditors.</p>

Suit in admiralty by tbe Petrie Transportation Company against the steam tug New York Central No. 12; tbe New York Central Railroad Company, claimant. Decree for respondent (295 Fed. 522), and libelant appeals.

<p>f. Commerce <®=95 — Finding of fact by Interstate Commerce Commission not reviewable by District Court.</p> <p>A finding by tbe Interstate Commerce Commission that a discrimination is undue or unjust relates to an administrative question of fact, and is not reviewable by tbe District Court.</p> <p>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Commerce @=85 — Where not in public interest, Interstate Commerce Commission cannot order extension of joint use of terminal facilities.</p> <p>Under Interstate Commerce Act 1887, § 3 (Comp. St. § 8565), requiring equal facilities for interchange of traffic, and Transportation Act 1920, § 405 (Comp. St. Ann. Supp. 1923, § 8565), authorizing the Interstate Commerce Commission to require the use of terminal facilities of one carrier by another, if it is in the public interest and practicable to do so, where it was not shown to be in the public interest to require the use of terminal facilities of one railroad by another, the Commission could not order the practice in a certain zone of each carrier using the other’s tracks as if they were common property extended to -other parts of the city.</p> <p>3. Carriers @=32(2) — Industry within zone where carriers use tracks in common held not to enjoy undue preference over others outside zone.</p> <p>Where the practice had grown up between two railroads of using each other’s tracks as common property within a certain zone in a city, the industries located along the tracks of either company in such zone are in law considered as being located on the individual tracks of both companies, and the industries outside the zone as being located on the tracks of one of the companies only, the industries within the zone in legal effect not being similarly situated to those outside the zone, and the advantages enjoyed by them were not an undue or unreasonable preference, under Interstate Commerce Act 1887, § 3 (Comp. St. § 8565).</p> <p>4. Carriers @=32(2) — Industry selecting disadvantageous location not entitled to call on carriers to overcome disadvantage.</p> <p>An industry selecting a disadvantageous location for reasons justifiable to itself has no right to call on carriers to overcome such disadvantage at their expense.</p>

<p>Injunction <§=>223(2) — Newspaper publication held nof violation of strike injunction.</p> <p>An injunction issued in a railroad strike case, inter alia, restraining defendants and all others from coercing in any manner persons willing to enter the service of plaintiffs, “jeering at or insulting the employees of plaintiffs, or molesting them,” and from in any way hindering, obstructing, or impeding the performance by plaintiffs of their business in the usual and normal way, held limited in its scope to personal actions and interference, and not violated by the publication in a newspaper of an article characterizing strikebreakers generally as scabs, traitors, etc.</p> <p>©=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Northern District of California; Wm. C. Van Fleet, Judge. '</p> <p>Petition in habeas corpus by Lee Hing, also known asl Lee Good Ming, against John D. Nagle, Commissioner of Immigration, Port of San Francisco. From an order denying the writ petitioner appeals.</p>

<p>I. Master and servant <@=286 (13, 31) — Issues of negligence as to flagman struck by caboose held for jury.</p> <p>Evidence that two cars shunted from the main line to a switch, on which caboose was standing under brake, descended by gravity or locomotive push on the caboose with such force that they failed to couple, and on the second impact the caboose was driven two car lengths and struck and killed flagman, held to authorize submission of the issues of negligence to the jury.</p> <p><§zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Master and servant <@=»l 11 (l'/2) — Instruction on duty to furnish automatic couplers held proper.</p> <p>In an action for the death of a flagman, struck by a caboose that failed to couple on impact with other cars, an instruction as to the effect of a violation of the Safety Appliance Act requiring automatic couplers, modifying defendant’s request for a charge exonerating it if the couplers were “capable of” coupling by impact, held proper.</p> <p><®s=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Trade-marks and trade-names and unfair competition <@=359(5), 70(3>-Infririge-ment of trade-mark and unfair competition held not to< exist. '</p> <p>A company with registered trade-mark “Vitovim” did not infringe-registered trade-mark “Vim,” of another company, and there was no unfair competition where such trade-marks were both applied to bread of the whole wheat variety, which were in fact different kinds of bread, of different color, size, and shape, the coloring of the outside wrappings was vastly dissimilar so that persons of low intelligence could instantly observe the difference in the appearance, and methods of distribution were different.</p> <p>«gs^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Illinois.</p> <p>In the matter of A. E. Van Rheeden & Sons, bankrupt. Fromthe allowance of the claim of Mrs. A. F. Van Rheeden, Mayer Bros, and others, acknowledged creditors, in' the name of their trustee, Harry Kerr, appeal.</p>

Criminal prosecution by the United States against Frederick J. Cooper. On motion to quash a search warrant and suppress evidence obtained by federal prohibition agents.

<p>In Equity. Suit by the H. G. Wheeler Salvage Company, Inc., against Rinelli & Guardino, Inc., and Stephen Guardino individually. Bill of complaint dismissed as to defendant Stephen Guardino, and relief as against the other defendant granted in part.</p>

<p>In Bankruptcy. In the matter of the estate of Joseph Levinson, ■ bankrupt. Examination of bankrupt in ancillary proceedings. Order entered.</p>

<p>Master and servant @=>62” — Employer held to have equitable title in patent obtained by employee.</p> <p>Where one was employed solely to develop process and machinery which eventuated in a patent to the employee, the employer had an equitable title in the patent, and not a mere license or shop right.</p> <p>@5»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the Murphy Wall Bed Company against the Pacific Spring Bed Company for infringement of claims 9, 10, 13, and 14 of United States reissue letters patent No. 13,428, issued on June 11, 1912, to Murphy Wall Bed Company, for “disappearing bed.” On final hearing. Decree for plaintiff.

In Equity. Suit for injunction by the Farmers’ State Bank of New Washington, Ohio, and others against the Board of Commissioners of Jensen Bridge District and others, in which F. W. Wells filed a petition to intervene.

<p>Sales <§=»I8! (I) — .Burden on seller to show delivery of coal impossible under contract.</p> <p>Under a contract for sale, of 200,000 tons of coal of certain grades and prices, “less such amount as the seller is unable to ship or deliver on account of strikes, lockouts, labor agitations, accidents, car shortage, contingencies of transportation or navigation, action of any governmental •agencies, or any causes beyond the control of the seller,” purchaser, suing for damages for failure to deliver part of the coal, was not required to aver or prove that the seller was not relieved by diffiralties from delivery of the coal, but, on the contrary, seller was affirmatively required to set up and establish the same by proof, if it desired to avail itself thereof.</p> <p>®c»For other eases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes</p>

Dickinson, Judge. Habeas corpus proceeding by the United States, on the relation of • Giuseppina Eicata, against James E. Hughes, Commissioner of Immigration, Port of Philadelphia, and another. The relator was discharged (289 Fed. 808), and defendants appeal.

Lewis, Judge. Two separate proceedings by the City and County of Denver against E. Stenger, as receiver of the Denver Tramway Company. From a decree in each proceeding, denying the first-named party’s claim and dismissing its application, the first-named party appeals.

Middleton Smith, Judge. Action at law by the Hassler Sales Agency, Inc., against David C. Shaw and others. Judgment for defendants, and plaintiff brings error. Julian Mitchell, of Charleston, S. C. (Mitchell & Horlbeck, of Charleston, S. C., on the. brief), for plaintiff in error. L. D. Jennings and A. S. Harby, both of Sumter, S. C., for defendants in error.

<p>Aliens <s=^62 — Claim of exemption from draft held to render alien ineligible for naturalization.</p> <p>A resident alien, who claimed exemption from military service because of his alienage, held ineligible for citizenship, under Naturalization Act, § 4 (Comp. St. § 4352), at least until the expiration of five years after the official termination of the war with Germany.</p> <p>(g^=>Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <@=>172 — Chattel mortgagee held entitled to proceeds of fire insurance policy.</p> <p>Where mortgagee of stock of goods-was assigned a fire policy on the goods to secure indebtedness to him long prior to any claim' of the creditors under the Bankruptcy Act, the mortgage being filed, the assignment carried the insurance to the amount of mortgagee’s indebtedness, and agreement to insure to secure the indebtedness carried a renewal of the policy, and the proceeds of the policy being paid to the debtor’s trustee in bankruptcy, because the insurance company had no notice of the assignment, the mortgagee has an equitable title in or lien on the proceeds of the policy to the extent of the indebtedness.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents <©=>328 — No. 1,283,164, for wind shield for automobiles, held valid, but not infringed.</p> <p>The Hammond patent, No. 1,283,164, for a wind shield for automobiles, including a transparent glass plate having a portion of the surface silvered to provide a reflecting surface adapted to act as a mirror, held valid,, but, as limited by the proceedings in the Patent Office, not infringed.</p> <p>2. Patents «=3167(1) — Language of claim should be given ordinary meaning; “wind shield.”</p> <p>The term “wind shield,” used in a patent claim relating to automobiles, must be construed in its ordinary sense as meaning the glass between the two front standards or posts, and does not include wind deflectors placed outside of such standards.</p> <p>«=cFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Patents <S=>260 — Nonuse may affeet scope of patent.</p> <p>While use of a patented device is not necessary to support the patentee’s rights, its nonuse may have significance in respect to the scope of the patent, where the alleged infringing device has had great commercial success.</p> <p><§=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p>

<p>In Error to the District Court of the United States for the Western District of New York.</p>

<p>Appeal from the District Court of. the United States for the Southern District of New York.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p>