As a second basis for the recovery of damages, the plaintiffs contend that the defendants circulated among the agents, users, purchasers, and prospective purchasers of the churns of the plaintiffs, located in different states, reports and statements that the combined churns and butter workers sold by the plaintiffs were infringements of the Disbrow patents owned or controlled by the defendants, and that they threatened to bring suits against the users of the plaintiffs' churn. That the owner of a patent may notify infringers of his claims, and warn them that, unless they desist, suits will be brought to protect him in his legal rights, is sustained by numerous decisions. Kelley v. Ypsilanti Dress Stay Manufacturing Co. (C. C.) 44 Fed. 19, 10 L. R. A. 686; Computing Scale Company v. National Computing Scale Company (C. C.) 79 Fed. 962; Farquhar Company v. National Harrow Company, 102 Fed. 714, 42 C. C. A. 600, 49 L. R. A. 755; Adriance, Platt & Co. v. National Harrow Company, 121 Fed. 827, 58 C. C. A. 163; Warren Featherbone Company v. Landauer (C. C.) 151 Fed. 130; Mitchell v. International, etc., Company (C. C.) 169 Fed. 145; 30 Cyc. 1054.

The only limitation on the right to issue such warnings is the requirement of good faith. There is nothing in the warnings given in this case to show that the letters or notices were false, malicious, offensive, or opprobrious, or that they were used for the willful purpose of inflicting injury. In such a case it was said, in Kelley v. Ypsilanti, supra:

"It would seem to be an act of prudence, if not of kindness, upon the part of a patentee, to notify the public of his invention, and to warn persons dealing in the article of the consequence of purchasing from others. Chase v. Tuttle [C. C.] 27 Fed. 110; Boston Diatite Company v. Florence Manufacturing Company, 114 Mass. 69 [19 Am. Rep. 310]; Kidd v. Horry, 28 Fed. 773."

There is nothing in this case to indicate that any of the warnings issued by the defendants were made in bad faith, and they were promptly followed by the institution of the infringement suits. In issuing notices and warnings we think the defendants were acting within their legal rights. If they had the right to bring the suits, they had the right to issue the warnings. It may be, and probably is, true that the pendency of these suits resulted in some damage to the plaintiffs by lessening the sale of the challenged device; but such damage was an incident of the suits, and cannot be made the basis of a recovery.

The conclusion reached is that the Circuit Court properly directed the jury to return a verdict for the defendants, and the judgment is affirmed.

SOUTHERN CAR MFG. SUPPLY CO. v. LAYNE.

(Circuit Court of Appeals, Fifth Circuit. March 8, 1910.)

No. 1,963.

PATENTS (328*)-VALIDITY AND INFRINGEMENT-WIRE-WINDING MACHINE. The Layne patent, No. 820,507, for a wire-winding machine, held valid and infringed as to claims 11 to 17, inclusive.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from the Circuit Court of the United States for the Southern District of Texas.

In Equity. Suit by Mahlon E. Layne against the Southern Car Manufacturing Supply Company. Decree for complainant, and defendant appeals. Affirmed.

The following is the decree of the Circuit Court, entered by Bryant, District Judge:

On January 25, A. D. 1909, came on to be heard the above entitled and numbered cause at Sherman, Tex., by agreement of counsel, the complainant appearing by his attorneys of record, Paul Synnestvedt and Andrews, Ball & Streetman, and the defendant appearing by its attorneys of record, William H. Babcock and Carlton & Townes, and both parties having announced ready, and the court having heard the pleadings of the respective parties read, the evidence introduced, and argument of counsel, and having taken said cause under advisement until this the 21st day of April, A. D. 1909; and, the court being fully advised in the premises, it is now ordered, adjudged, and decreed as follows:

First. That the letters patent of the United States issued to Mahlon E. Layne on the 15th day of May, 1906, for wire-winding machines and for improvements in wire-winding machines, the number of the letters patent being 820,507, are good and valid as to claims 11 to 17, inclusive, thereof, which are as follows, and no adjudication is made as to the validity of the other claims:

(a) "Claim 11: In a wire-winding machine, a feed guide for placing the wire upon the support comprising a jaw having rollers to engage the wire, and said rollers being mounted so that they may be laterally rotated in its supporting socket in order to twist and place the wire upon the support in any desired angular position, substantially as described."

(b) "Claim 12: The combination, with a rocking carriage, of a series of tension rolls thereon and a feeding guide pivotally mounted and having means to rotate it in a plane parallel with the axis of the helix of wire, whereby to twist the wire as it is fed to the support of helix, substantially as described." (c) "Claim 13: In a wire-winding machine, the feeding guide, 21, pivotally mounted upon its support and having means to rotate it in its support for twisting the wire to direct it upon its support, substantially as described."

(d) "Claim 14: In a wire-winding machine, the feeding guide, 21, having grooved rollers in its jaws to engage the wire and being mounted for vertical oscillation, and capable of adjustment in a rotary direction around the axis of the wire as it is being fed upon its support, substantially as described."

(e) "Claim 15: In a wire-winding machine, the combination with a vertically adjustable feeding guide and a spacer engaging the previously wound turns of the helix of wire adapted to advance said guide with the mean position of several turns of wire, substantially as described."

(f) "Claim 16: The combination in a wire-winding machine of rolls having means for punching and spreading spacing spurs upon the wire, substantially as described."

(g) "Claim 17: In a wire-winding machine, the combination with means for forming lateral spurs upon the side of the wire as it is being fed to its support, and a guide to advance the carriage along the helix adapted to engage the wire upon several of its turns and advance the machine by the mean position of said turns, substantially as described."

Second. That the said Mahlon E. Layne was the first, true, and original inventor of the inventions and improvements described and claimed in said letters patent, and particularly recited in claims 11 to 17, inclusive, thereof. Third. That the complainant, Mahlon E. Layne, is the lawful owner of said letters patent.

Fourth. That the defendant, Southern Car Manufacturing Supply Company, has infringed upon the said eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth claims of the letters patent of complainant, and upon the exclusive right of the complainant under the same. That the complainant, Mahlon E. Layne, has not proved infringement of claims 1

to 10, inclusive, or of claims 18 to 21, inclusive, of said letters patent; and it is ordered that judgment be here entered for defendant on the question of infringement as to said claims 1 to 10, inclusive, of the patent in suit.

Fifth. That complainant, Mahlon E. Layne, do have and recover of the defendant, Southern Car Manufacturing Supply Company, the profits which the said defendant has derived, received, or made since the 15th day of May, 1906, by reason of said infringement of said claims 11 to 17, inclusive, of said letters patent, and that the complainant do receive of the said defendant any and all damages which the complainant has sustained since said date, by reason of said infringement by said defendant.

Sixth. And it is hereby referred to H. P. Barry, as a master of this court, who is hereby appointed pro hac vice to take and state the account of said profits, and to assess such damages as complainant has to same, and to report thereon with all convenient speed, and the defendant, its directors, officers, attorneys, clerks, and employés, are hereby directed and required to attend the hearings before the aforesaid master from time to time as required, and to produce before him such books, papers, vouchers, and documents, and to submit such oral examination as the master may require.

Seventh. That the said defendant, Southern Car Manufacturing Supply Company, its directors, officers, attorneys, agents, and employés, be and they are hereby enjoined and restrained from directly or indirectly making or causing to be made, using or causing to be used, or selling or vending to others to be used, in any manner, any articles, devices, appliances, or apparatus for wire-winding machines containing, embodying, or employing the said inventions and improvements contained and covered by claims 11 to 17. inclusive, of said letters patent, or any other articles, devices, or apparatus which, being combined or used, produce an infringement of said claims 11 to 17, inclusive, of said letters patent, or from infringing upon or violating the said letters patent in any way whatsoever.

Eighth. That a writ for a perpetual injunction issue out of and under the seal of this court, directed to the said defendant, Southern Car Manufacturing Supply Company, directors, officers, attorneys, agents, and employés, enjoining and restraining them and each of them from directly or indirectly making or causing to be made, using or causing to be used, or selling or vending to others to be used, in any manner, any articles, devices, appliances, or apparatus for wire-winding machines containing, embodying, or employing the said inventions and improvements contained and covered by claims 11 to 17, inclusive, of said letters patent, or any articles, devices, or apparatus capable of being combined or adapted to be used in infringement of said claims 11 to 17, inclusive, of said letters patent, or from infringing upon or violating the said letters patent in any way whatsoever.

Ninth. That the question of costs herein is passed for future adjudication of this court on final hearing.

To all of which defendant then in open court excepted and is allowed 30 days in which to apply for an appeal.

E. E. Townes and Ernest Wilkinson, for appellant.

Frank Andrews, Paul Synnestvedt, Coke K. Burns, and James C. Bradley, for appellee.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. A majority of the judges are of opinion that the patent sued on is valid, and that the defendant below, appellant here, has infringed the same in the respects pointed out in the decree appealed from.

It is ordered that the decree of the Circuit Court be affirmed.

THE GENERAL DE SONIS.

(District Court, W. D. Washington, N. D. April 11, 1910.)

No. 3,410.

1. SHIPPING (8 84*)-MASTER'S LIABILITY FOR INJURY TO THIRD PERSON BY NEGLIGENCE OF SERVANT-SCOPE OF EMPLOYMENT.

The second mate of a vessel, in volunteering to assist the employés of a stevedore in replacing a hatch cover, which was the duty of the stevedore's men, was not acting as representative of the ship's owner or master, having authority to fasten responsibility on them under the rule of respondeat superior, and they cannot be held liable for an injury to one of the men through the mate's negligence.

[Ed. Note.-For other cases, see Shipping, Cent. Dig. §§ 342, 349-351; Dec. Dig. § 84.*]

2. SHIPPING (87*)—LIABILITY OF VESSEL FOR TORT-NEGLIGENCE OF MASTER OR CREW.

By the maritime law a ship in commission and her officers and crew are unified, so far that for maritime torts, whether the ship is the instrument by which an injury is inflicted, or the injury is the consequence of a negligent or mischievous act of her captain or any member of her crew, a maritime lien attaches to the ship, which entitles the injured to recover compensation by a suit in rem.

[Ed. Note. For other cases, see Shipping, Cent. Dig. § 340; Dec. Dig. § 87.*]

3. SHIPPING (§ 84*)—LIABILITY OF VESSEL FOR TORT-NEGLIGENCE of MateCONTRIBUTORY NEGLIGENCE-DIVISION OF DAMAGES.

Libelant, with other employés of a stevedore, were engaged in replacing a hatch cover on a vessel, when a mate volunteered to assist, and through his negligence and that of libelant the hatch cover was caused to fall with them, and libelant was injured. Held, that the ship was liable for the negligence of the mate, and that libelant was entitled to recover half damages.

[Ed. Note. For other cases, see Shipping, Cent. Dig. §§ 342, 349–351; Dec. Dig. § 84.*]

4. NEGLIGENCE (§ 1*)-NATURE AND ELEMENTS-DEGREES.

The degree of negligence necessary to fasten liability upon a person is that degree which is equivalent to lack of such care and prudence as ordinary men habitually exercise for their own personal safety.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.*]

In Admiralty. Suit by John Neiger against the ship General De Sonis, her owner, Société Nouvelle d'Armement, and her master, R. Consinet, by a longshoreman, to recover damages for a personal injury suffered while libelant was assisting in covering a hatchway on the ship, caused by the collapsing of the hatch structure. Decree that the libelant take nothing by his suit in personam, and recover half his damages, with interest, against the ship, with a division of costs.

J. L. Waller and Z. B. Rawson, for libelant.

Bogle, Hardin & Spooner and Ira A. Campbell, for respondents.

HANFORD, District Judge. The libelant was employed by a firm of stevedores having a contract to discharge the cargo of the ship General De Sonis. At the end of a day's work the men who were doing the •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

work, as employés of said firm, left the ship without having replaced the covers on one of the hatchways, and by direction of their foreman several of the men, including the libelant, returned to the ship to close the hatchway, and while performing that service the libelant was precipitated through the hatchway into the hold of the ship and badly injured. He prosecutes this suit, in rem and in personam, against her master and owner, to recover damages on the alleged ground that the accident happened as a consequence of faulty construction of the frame and covering of the hatchway and carelessness and misconduct on the part of an officer of the ship in jumping upon one section of the hatch covers to force it into position. The owner's claim and a bond for release of the ship having been filed, the claimant and the master jointly answered an amended libel, contesting any liability.

The facts proved are that the coaming of the hatch is 3 feet 4 inches high above the deck, and made of steel a little more than one-third of an inch in thickness, secured to the deck by angle plates fastened to the steel deck and lugs fastened to the deck beams, and reinforced at the top by a half round steel molding. The strong-backs and fore-andafters, which with the coaming constitute the framework of the hatch, were also made of thin steel. The covering is timber in sections, and made to fit snugly, so as to completely close the opening. Additional means of strengthening the union of parts is provided, consisting of a rod in two parts, joined together by a turn-buckle reaching across the opening, and through the forward and aft coamings, and through the strong-backs. In use when the hatch is closed with the rod in place, the opposite coamings are drawn tight on the fore-and-afters by screwing the turn-buckle. The evidence proves that at the time of opening the hatch, when the rod was removed, the coamings spread half an inch and released the fore-and-afters, so that they were easily removed. The stevedores opened the hatch, and it was their duty to close it. On the occasion referred to, the libelant and his associates had so nearly completed their task that only two sections of the covering timbers remained to be fitted into their places. These seemed to be wider or longer than the space for them, and the men were about to leave the job unfinished, when the second mate of the ship came to their assistance, and an attempt was made to force the covers into position by elevating the overlapping edges and placing them against each other, so as to secure the advantage of a leverage with pressure forcing them down. The rod and turn-buckle had not been placed. The libelant was standing on the hatch with one foot placed to exert pressure downward on one of the sections when the second mate jumped upon the other section, to force it down, with the unexpected result that all, or a considerable part, of the hatch covering, with both men, fell down into the hold of the ship.

The evidence proves that no part of the structure was broken or bent, and all of it was subsequently used without any alteration or repair, and was serviceable as before the happening. Expert witnesses, who have had years of experience in surveying vessels for owners and underwriters, gave testimony approving the construction of the hatch, and according to their statement the ship throughout was constructed and kept in condition to be entitled to the highest rating as a carrier