[4] It is urged by defendant that Mrs. Wilkinson was guilty of contributory negligence, which should bar a recovery in this action. It is doubtful whether such defense can be interposed herein. It is not pleaded. It is an affirmative defense. Assuming that such defense is available to defendant herein, there is nothing that in my opinion establishes contributory negligence, so as to defeat a recovery by the plaintiffs. I have already discussed the right of Mrs. Wilkinson to carry her jewelry and personal adornment as baggage on the journey, and it cannot be said that because she utilized a receptacle in her berth, placed therein by defendant for the convenience and use of an occupant, such conduct was the proximate cause of her loss. The proximate and efficient cause of her loss in my opinion was the failure of defendant company to maintain a continual watch over the interior of the car in which she and her husband were asleep. In accordance with the foregoing views, I have made and filed herein the findings of fact and conclusions of law submitted by plaintiffs' counsel, pursuant to which plaintiffs will have judgment against defendant company for $4,100 and costs of suit. UNITED STATES GYPSUM CO. v. PACIFIC PORTLAND CEMENT CO. District Court, S. D. California, N. D. October 19, 1927. No. 1705. Patents 292-Defendant held not excused from answering interrogatories as to process used, alleged to infringe, on ground that it is trade secret. In suit for infringement of process patent, defendant cannot avoid answering interroga tories as to the process it uses on the ground that it is a trade secret; Rev. St. § 4908 (35 USCA § 56 [Comp. St. § 9453]) being inapplicable. In Equity. Suit by the United States Gypsum Company against the Pacific Portland Cement Company. On motion to enforce answers to interrogatories. Motion granted. Jones, Addington, Ames & Seibold, of Chicago, Ill., William K. White, and Chas. M. Fryer, both of San Francisco, Cal., for plaintiff. Pillsbury, Madison & Sutro, of San Francisco, Cal., and Lyon & Lyon, of Los Angeles, Cal., for defendant. KERRIGAN, District Judge. Plaintiff in this suit filed its bill, alleging infringement of a patent concerning the manufacture of plaster, covering the addition of a deliquescent substance to gypsum for the purpose of "aging" calcined gypsum products. Subsequently plaintiff propounded certain interrogatories to defendant. Instead of following the procedure laid down in equity rule 58 for raising objections to interrogatories, defendant filed a single document containing answers to certain interrogatories and a "claim of privilege" as to the remaining interrogatories. This document was, however, filed within the time prescribed for objecting to interrogatories. Plaintiff now moves for an order to enforce answers to the unanswered interrogatories. Plaintiff raises two technical objections to defendant's answers to the interrogatories as filed. The first is that, since defendant has answered in part, and has not followed the precise steps indicated by equity rule 58 for raising objections to interrogatories, defendant has waived all objections, and must It is true that debe required to answer. fendant has not followed the best practice in this connection, but it did make its objections to answering certain interrogatories within the required time, and the grounds of the objections are clearly apparent from the document filed. I shall not require defendant to answer on this ground. A second technical objection to defendant's answers is based upon the fact that a series of questions, all involving the matters as to which defendant claimed privilege, as set forth in the answers to preceding interrogatories, in the series, were answered: "This is fully covered in the foregoing answers," without specific reference to the foregoing answers by number or other identification. This is said to be a breach of the requirement of equity rule 58 that "each interrogatory shall be answered separately and fully." Here again it appears that defendant may not have complied with the rule strictly construed, but plaintiff has not been misled. The interrogatories are not excessively numerous, and even casual reading of the answers makes it clear which previous answers made by defendant are being referred to. This court is not in sympathy with hyper-technical objections of this sort, and defendant would not be required to recast its answers solely upon such grounds, although greater accuracy of reference in answering interrogatories by reference is desirable. The chief question on this motion to en 22 F.(2d) 180 force answers is as to the claim of privilege, which is based upon the fact that answers to the interrogatories objected to would necessitate the revelation of certain trade secrets. This claim of privilege is made by the vice president of defendant corporation, who describes himself as being in charge of operations, and as being technically trained in the methods of manufacturing plasters, and who answers the interrogatories on behalf of defendant. He states that from July, 1925, to March 9, 1926, defendant's mill at Plaster City did use a process which infringed upon plaintiff's patent, and that from August, 1925, to February 19, 1926, the same process was in use at defendant's mill at Gerlach. On the latter dates defendant discontinued the use of the infringing process at both mills, having received notice of infringement from plaintiff on or about January 4, 1926. This suit was begun June 8, 1926. After discontinuing the infringing process, and up to the date of the filing of suit by plaintiff, defendant alleges that it used a new and different secret process, on which application for patent is now pending. The vice president asserts that his technical training and experience qualify him to state that this new process is not covered by the claims of plaintiff's patent, in that defendant's process does not involve the use of any deliquescent substance. Plaintiff's interrogatories ask for the process in use by defendant up to the date of filing suit. Defendant's partial answers cover the process used up to March 9, 1926, and February 19, 1926, at its two mills, but defendant claims privilege against revealing the new secret process substituted for the infringing process and in use when suit was filed. In considering this question, the first thing to be noted is that the provisions of section 4908, R. S. (35 USCA § 56 [Comp. St. § 9453]), to the effect that witnesses shall not be deemed guilty of contempt for refusing to disclose any secret invention or discovery made or owned by himself do not apply to the present case, but refer only to contested matters pending in the Patent Of fice. This matter is to be decided upon the general principles of equity. The general rule governing the disclosure of secret processes in interrogatories is declared in Grasselli Chemical Co. v. National Aniline & Chemical Co. (D. C.) 282 F. 379, 381: "The defendant, however, urges that it should not be required to disclose its secret processes. No doubt the situation is difficult, on the one hand, to secure the plaintiff's right to get relevant evidence, and, on the other, to protect the defendant from disclosing secrets which are not material. In the end, the right of the plaintiff to bring out the truth must prevail, in so far as the inquiry is honestly limited to the actual issue of infringement. In the case at bar there can be no doubt that at the hearing the defendant would be obliged to answer the questions here propounded, and, if so, I can see no good reason to preclude that examination now. It is true that the result may be to compel the defendant to disclose how far it goes in the process, though it does not use the process as a whole, and that that may damage the defendant. That is, however, an inevitable incident to any inquiry in such a case; unless the defendant may be made to answer, the plaintiff is deprived of its right to learn whether the defendant has done it a wrong. "In Federal, etc., Co. v. International, etc., Co. [C. C.] 119 F. 385, it would at first blush look as though Judge Townsend had generally laid it down as a rule that a defendant might avoid answering on the ground that to do so he must disclose trade secrets; but the decision did not in fact go so far. There the interrogatory asked for a disclosure of the structure of the defendant's machine, in case it was not made in accordance with the patent. The interrogatory was certainly not relevant to the plaintiff's case, and, being oppressive, could not be enforced. No authority was cited for the general ruling that a defendant may refuse to answer a relevant interrogatory because it would disclose a trade secret." See, also, John Wood Mfg. Co. v. KeinerWilliams Stamping Co. (D. C.) 4 F. (2d) 615. Applying the doctrine of these cases to the present one, it is clear that defendant must answer the questions propounded. The matters inquired about are material and relevant. They must in any event be revealed at the hearing Defendant has the presumptions against it in view of its prior infringement and secretiveness as to its present process. Rowell v. William Koehl Co. (D. C.) 194 F. 446. The fact that one of its officers has attempted to construe plaintiff's patent, and states that in his opinion defendant's process is not an infringement, cannot avail defendant. To hold to the contrary would be to permit the defendant in any patent suit to decide one of the major issues of the suit in advance of the trial by deciding the limits of plaintiff's patent, and whether or not defendant was infringing. The motion to enforce answers to the interrogatories will be granted. So ordered. Ten days to answer. THE IDA B. CONWAY. point where the collision occurred was 123 District Court, D. Maryland. October 18, 1927. feet, and was some 400 yards east of a draw No. 1423. 1. Collision 75(2)-Schooner propelled by small power boat made fast to her stern is a "steam vessel" (Pilot Rules [33 USCA § 154 et seq.]). A schooner being propelled by a small power boat made fast to her stern is for the time a "steam vessel," within Pilot Rules (33 USCA § 154 et seq. [Comp. St. § 7872 et seq.]) as to lights. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Steam Vessel.] 2. Collision 75(2)-Schooner being operated as a steam vessel, carrying only one white light astern, held to violate rule (Pilot Rules, art. 2 [f], being 33. USCA, § 172). Schooner being operated as a steam vessel, by carrying only one white light astern, held to violate Pilot Rules, art. 2 (f), being 33 USCA § 172 (Comp. St. § 7876). 3. Collision 103-Schooner propelled by motorboat astern, which could not check speed or move astern quickly, held in fault for collision. Schooner being propelled in a canal at night by a small power boat astern, and which had virtually lost her steerageway, so that she could not check her speed or move astern, held neg ligent, and in fault for a collision. 4. Collision 103-Motor cruiser held chargeable with contributory fault for collision with meeting schooner in canal at night. Motor cruiser held chargeable with contributory fault for collision in a canal at night with meeting schooner, for not being on her own side of the fairway and failing to keep proper lookout. Her bridge, through which the schooner had passed and the Aloha was preparing to enter. The schooner's top sides were white. sails had been lowered, and she had been propelled through the canal in a manner boat, with a small gasoline engine, was made quite common in this locality, namely, a yawl fast to the schooner's stern and propelled her by pushing. While it was possible to reverse the engine in the yawl boat, it was impractical to attempt it, because of the difficulty in steering. As the schooner in this manner went through the draw, the engine in the yawl boat was stopped, and so it remained until the accident, so that the schooner was drifting along very slowly at the time, with her master at the wheel, a lookout in the bow, and the mate operating the yawl boat. Proper side lights were carried on the schooner, and there was a white light on her stern; but she did not otherwise comply with article 2, section F, of the Pilot Rules, respecting central range of white lights. None of the three persons referred to had a pilot's license, but they were accustomed to navigate these waters. With respect to the Aloha, she was carrying all requisite lights and was being operated by her owner, who also had no pilot's license, but had been through this canal a number of times in the same craft. She was steered from a bridge about amidships. The draw was some 30 feet wide, swinging on a pivot, and was marked by three red lights, one on each abutment, and one on the center of the draw when closed, which changed to a the passage In Admiralty. Suit for collision by C. A. green light when the draw was open, leaving between the two other red lights. Wigmore against the schooner Ida B. ConThere is, as usual in such cases, much conway. Decree dividing damages. flict of testimony as to the real cause of the Lord & Whip, of Baltimore, Md., for li- collision. The sum and substance of libelbelant. ant's contention is that he was navigating his John Henry Skeen, of Baltimore, Md., boat with due care, and mistook the port runfor respondent. COLEMAN, District Judge. This case involves a collision at night which occurred in the Chesapeake & Delaware Canal, near Delaware City, Delaware. Libelant's motor cruiser Aloha, some 50 feet long, 10 feet beam, was bound down towards Baltimore, when it collided with respondent's schooner Ida B. Conway, some 84 feet long, 24 feet beam, laden with oyster shells, bound in the opposite direction towards Philadelphia. So much of the facts as appear to be uncontradicted are as follows: The night was calm, clear, and starlit. The width of the channel of the canal at the ning light of the schooner for a red light on the drawbridge, and that, had the schooner been properly navigated, had she kept to her side of the canal, and had she been carrying the proper lights, this mistake on his part would not have occurred. For the schooner, the claim is made that the direct cause of the collision was faulty navigation on the part of libelant, who, as it is claimed, did not keep his boat sufficiently to starboard when they were about to pass each other, and in addition that, when the collision appeared imminent, libelant, instead of avoiding it, as he might have done by reversing his engine and going straight astern, first swung the Aloha to starboard and then reversed, rendering it 22 F.(2d) 182 impossible for the schooner to get out of her way. The bowsprit of the schooner struck a port stanchion of the Aloha a little aft of amidships, the impetus swinging the Aloha about and finally running her aground, stern first, on the south—that is, the schooner's side of the canal. The rudder post of the Aloha was broken and she suffered other damage; the total claim being in the sum of $1,000. It appears that a steamer of the Ericsson Line bound for Baltimore was proceeding ahead of the Aloha, about 300 or 400 yards distant, and had already passed through the draw and was in the lock on the other side. Libelant claims that he had stopped his engine, and upon seeing the moving red light he thought that it was the central red light upon the draw, and that the draw was being closed against him, whereupon he sounded three blasts to indicate that he wanted it to be opened, so that he could pass through. Just before the vessels struck, the master of the schooner claims to have blown a warning blast on a small fog horn, and also to have called out a warning to libelant. [1] The first question to be answered is whether the schooner was a steam vessel or a sailing vessel, because a determination of this question has a direct bearing upon the matter of lights. Every vessel under steam, whether under sail or not, is to be considered a steam vessel, and a steam vessel is deemed to be any vessel propelled by machinery. Pilot Rules (30 Stat. 96 [33 USCA § 154 et seq.; Comp. St. § 7872 et seq.]). Whether the method of propulsion used in this casethat is, the pushing of the schooner by a small power boat made fast to the stern, which is quite common in the waters in and around Chesapeake Bay-brings the schooner within the classification "steam vessel" appears never to have been the subject of adjudication. However, the Supreme Court has decided that a ship and a tug towing her are, in contemplation of law, but one vessel under steam. The Civilta and The Restless, 103 U. S. 699, 26 L. Ed. 599. And, similarly, that a tug and a barge are, in contemplation of law, but one vessel, constituting together the effective instrumentality in construing liability under the Harter Act (46 USCA §§ 190-195 [Comp. St. §§ 8029-8035]). Sacramento Navigation Co. v. Salz, 273 U. S. 326, 47 S. Ct. 368, 71 L. Ed. 663. By analogy, therefore, if not by direct authority, these cases would seem to uphold the conclusion which the court adopts that the schooner in the present case was, at the time, a steam vessel. Also, it is not questioned that she was under way. [2] Turning, then, to the question of lights, while the schooner was carrying the proper side lights, she violated article 2, subsection F of the Pilot Rules (30 Stat. 96 [33 USCA § 172; Comp. St. § 7876]), in that she had only a white light at the stern, instead of a central range of two white lights. It is to be noted, before passing from this subject, that, even if the schooner be deemed a sailing vessel, then she must be declared to have violated Article 5 of the Pilot Rules (30 Stat. 97 [33 USCA § 174; Comp. St. § 7878]), because a sailing vessel under way must not carry a white light, as was done in the present case. If considered a sailing vessel, then we still have to deal with the yawl boat, which had no white light astern, so apparently in violation of the motorboat rules. In other words, from any aspect, the legal requirement as to lights was not met. The question now arising is this: Granting that the schooner was violating the requirements as to lights while under way, are we to conclude from this, without more, that there was negligence on the part of the schooner? While it is true that the burden of proof is on the vessel whose lights are attacked to show affirmatively that her lights were properly placed and burning at and just before a collision, The Conoho, 24 F. 758; nevertheless, mistaking lights of a vessel for lights on a draw on a clear, calm night, if it results in a collision, or misjudging distance of lights on another vessel under such conditions, resulting in collision, may prove negligence on the part of those so misjudging, The West Hartland (C. C. A.) 2 F. (2d) 834, 1925 A. M. C. 47. [3] So it becomes necessary now to turn to the question of navigation, and consider first, whether or not the schooner was improperly navigated. That she was allowed virtually to lose her steerageway was not negligent under the given circumstances, but there does appear to be an unwarranted element of negligence in the operation of a boat of this size and tonnage by such means that, should it become necessary suddenly to check her headway, or move her astern, this could not be done. In the present case, it is not clear to the court but that, had the schooner been propelled by an engine of her own, or had she been pushed along in a way which would have enabled the propelling craft to move astern as well as forward, the accident might have been avoided. [4] Turning now to the question of negligence on the part of the Aloha, the court is of the opinion that some negligence is also to be imputed to libelant in his operation of her. It is to be noted that, while he says he at all times kept well over to his side of the canal, he was unable to testify just how far he was from the shore. It is more likely, in the opinion of the court, that the schooner was keeping to her side of the canal better than the Aloha was keeping to her own side, because the schooner had just passed the Ericsson Line steamer, a rather large vessel. While the libelant testified that he could not see the schooner until it was almost upon him, although it was painted white and the night was clear, respondent's witnesses testified they could see the Aloha as soon as the schooner had passed the steamer. If this was the case, it would appear that the libelant had not been keeping a proper lookout. Furthermore, the position of the vessels immediately after the accident would seem to raise the presumption, which has not been satisfactorily rebutted, that the Aloha was more at fault in improperly deviating from her course than was the schooner. Pilot Rules, article 25 (30 Stat. 101 [33 USCA § 210; Comp. St. § 7899]). In conclusion, the court feels that, whereas libelant has sustained the burden imposed upon him of proving some negligence on the part of the schooner, The Banner (D. C.) 225 F. 437; The Margaret M (D. C.) 257 F. 570; the court believes that there was some fault on his own part directly contributing to the collision, and therefore the case appears to be a proper one for division of damages, The Nevada (D. C.) 275 F. 965. A decree will be entered accordingly. Internal revenue 7(19)-Losses on sale of securities, transferred in trust, but withdrawn, held deductible from personal income of donor (Revenue Act 1918, § 219 [Comp. St. § 6336ii]). Plaintiff, by trust instruments, transferred securities described in schedules attached to trustees with power to sell and reinvest, to collect the income and pay the same to plaintiff and his wife, but reserving the right to withdraw any of the securities and to terminate the trust at will. Under these instruments all sales of securities and reinvestments were either made or directed by plaintiff, the proceeds of sales being paid in some cases to him and in some to the trustees. Held, that the sales were not of trust property within Revenue Act 1918, § 219 (Comp. St. § 6336%); that title to the securities, when sold, was not in the trustees but the sales from his gross personal income. in plaintiff, who was entitled to deduct losses on At Law. Action by Henry Stoddard against Robert O. Eaton, Collector of Internal Revenue. Judgment for plaintiff. Henry Stoddard, of New Haven, Conn., pro se. Frederick W. Dewart, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C., and John Buckley, U. S. Atty., and George H. Cohen, Asst. U. S. Atty., both of Hartford, Conn., for defendant. THOMAS, District Judge. This is an action brought by the plaintiff to recover from the defendant certain additional income taxes assessed against the plaintiff in connection with his income tax returns for the years 1919, 1920, and 1921. The plaintiff paid these taxes under protest, and, his claim for refund having been rejected, he brings this action to recover the amounts paid. The additional taxes so assessed by the department and paid by the plaintiff were as follows: For the year 1919, $598.85; for 1920, $843.16, and for 1921, $2,488.47, plus interest in the amount of $502.10, making a total of $4,432.58. The question involved is whether the plaintiff is entitled to deduct from his gross income claimed losses on the sale of securities which were held by trustees under the particular trust instrument given by the plaintiff, wherein, as it will appear, he was both donor and beneficiary. The plaintiff is an individual and a resident of Connecticut. For a number of years it has been the custom of the plaintiff and his wife, both of whom are of advanced age, to spend the winter of each year in the South. On December 21, 1916, the plaintiff vol untarily, for his personal convenience and purposes, and without consideration, executed, and Clifford I. Stoddard, son of the plaintiff, and the Union & New Haven Trust Company, accepted, the trust created by the following instrument: "I, Henry Stoddard, of the town of Woodbridge, state of Connecticut, do hereby give, grant, sell, assign, transfer and convey unto my son, Clifford I. Stoddard, of said Woodbridge, as trustee, and unto the Union & New Haven Trust Company, a corporation organized under the laws of the state of Connecticut and located in said New Haven, as cotrustee, with my son, Clifford, the several items of property noted in the schedule or schedules of property hereto an |