gard to the individual rights of the indi- quick interchange of wheels, or the substituvidual concerned. tion of a spare wheel for a disabled one." So far as the National Surety Company is concerned, we undertake to restrain it by preliminary injunction only from going on additional bonds at the behest of the United Mine Workers of America. The three claims in suit read as follows: 9. "In a motor vehicle, the combination with the front and rear stationary axles, of steering spindles pivoted at the ends of the front axle, hub receiving members surround Let an order be submitted in accordance ing and rotatably mounted on said spindles, with this opinion. OVERLAND MOTOR CO. v. PACKARD MOTOR CO. et al. Circuit Court of Appeals, Seventh Circuit. December 1, 1927. No. 3439. Patents 328-1,103,567, claims 9, 11, 18, for interchangeable automobile wheel, held valid. Cowles patent, No. 1,103,567, claims 9, 11, and 18, for combination making effective an interchangeable automobile wheel, held valid, involving novelty, usefulness, and invention. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Adam C. Cliffe, Judge. Suit by the Packard Motor Company and another against the Overland Motor Company. From a decree for plaintiffs (297 F. 474), defendant appeals. Affirmed. C. B. Des Jardins and Melville Church, both of Washington, D. C., for appellant. Frank Parker Davis, of Chicago, Ill., for appellees. Before EVANS, PAGE, and ANDERSON, Circuit Judges. EVAN A. EVANS, Circuit Judge. This suit was brought to enjoin infringement of the Cowles patent, No. 1,103,567, covering a motor vehicle. Certain questions presented upon a former argument were certified to the Supreme Court and answered by that court in an opinion announced May 30, 1927. 274 U. S. 417, 47 S. Ct. 672, 71 L. Ed. 1131. The remaining question is one of validity, infringement not being questioned. Cowles says in his application: "My present invention relates to improvements in motor vehicles, and particularly to the running gear and steering mechanism of such vehicles. An object of the invention is to provide light and strong steering hub, the pivotal supports of which are arranged in the revolving plane of the wheel. Another object is to provide front and rear wheel hubs so constructed as to permit of convenient and a driving shaft rotatably arranged within said rear stationary axle, hub receiving members of the ends of said rear axle and connected to be driven by said driving shaft, and wheels having hubs adapted to be removably secured, interchangeably, to said hub receiving members. 11. "In a motor vehicle, the combination with the front and rear stationary axles, of steering spindles pivoted at the ends of the front axle, hub-receiving members surrounding said spindles, anti-friction bearings between the members and spindles, a driving shaft arranged within said rear stationary axle, hub-receiving members at the ends of said rear axle and connected to be driven by said driving shaft, anti-friction supporting bearings for said rear stationary axle, and wheels having hubs adapted to interchangeably fit on said hub receiving members and readily removable therefrom without removing or exposing said anti-friction bearings. 18. "In a motor vehicle, in combination, stationary front and rear axles, steering spindles pivoted to the front axle, hub receiving members surrounding said spindles and having teeth or projections, roller bearings between said members and spindles, a driving shaft within said rear axle and projecting beyond the ends thereof, roller bearings between the driving shaft and the stationary rear axle adjacent the outer ends of the latter, hub receiving members secured upon the projecting ends of the driving shaft and having teeth or projections, wheels having hubs adapted to interchangeably fit said, hub receiving members and adapted to be fitted upon and readily removed from said members without disturbing the bearings, said hubs having teeth or projections adapted to fit the teeth or projections on said hub receiving members, and means for retaining the hubs on the hub receiving members with the teeth or projections in interengagement." The inspiration for this invention was a desire to overcome tire troubles in automobile operation. Tire difficulties were particularly vexatious and annoying during the early days of automobile travel. Numerous were the remedies offered. Some were quickly abandoned, while others helped in the solution of the problem. Probably the most satis 22 F.(2d) 566 factory and outstanding contributions were the extra wheel and the demountable rim. A serious objection to the extra wheel resided in the fact that the rear and front wheels were not interchangeable. The rear axle and rear hub differed in purpose and construction from the front ones. Cowles labored to remedy this trouble. His invention made it possible for the manufacturer to maintain but one standard running gear construction extending to axles and steering spindles, driving shafts and bearings, usable with either nondemountable wheels equipment or with demountable wheel equipment. Cowles contends that he "hit upon the happy thought of applying the demountable wheel idea to the ordinary driving shaft of a motor vehicle and the making commercially available and acceptable in that industry of the quick detachable wheel expedient by adapting it to both driving nonsteering and steering nondriving wheels in one and the same vehicle, so as to make interchangeable and spare wheel use universal." Cowles' invention dates back to 1899. The art prior to the advent of the automobile was represented by wheels on wagons, buggies, and other vehicles. Their purposes and uses were quite different from those on the automobile and naturally the hub and wheel structures were different. The automobile necessitated a set of driving wheels and a set of steering wheels both equipped with pneumatic tires. The hub structure of the driving wheels differed from the hub structure of the steering wheels. To solve the problem of tire blows and wheel breakage, Cowles offered his conception of an interchangeable wheel with its unique hub receiving mechanism. It is therefore apparent that he approached a somewhat different problem than that which confronted the wagon maker. There was nothing in the prior art that suggested his wheel or hub structure. It was concededly novel; likewise, useful. The extent of its use is involved in some doubt and dispute, but it can at least be described as extensive. Its commercial value was clearly established. Likewise, there was acquiescence in, and a recognition of, the validity of his patent by manufacturers and dealers. Support for Cowles' claim of patentable novelty rests more upon the happy thought of an interchangeable wheel to solve pneumatic tire trouble and wheel breakage than in the uniqueness of the mechanical structure he devised to apply to both driving nonsteering and steering nondriving wheels. We would not, however, be justified in separating the happy thought from the combination which he devised to meet the problem. It is the meritorious concept plus the structure designated to effectuate the thought that justify the finding of validity. In reaching this conclusion, we have not overlooked appellee's argument based upon the existence of a similar thought and structure by an English mechanic. Occurring at about the same time, meeting the same problem in about the same way, this fact is advanced to convince us that Cowles' structure merely evidenced the skill of the mechanic. The force of this argument cannot be gainsaid. In an appropriate case it may be wellnigh conclusive on the question of invention. For the existence of inventive genius is negatived by proof that different mechanicswhen confronted by the same problem-solve it in the same way even though that way be a novel one. However, we are not prepared to attribute to the inventor such superlative qualifications as would exclude all but supermen from the list. While there is a difference between the skill of the mechanic and the skill of the inventor, we must also recognize the existence of a twilight zone wherein the line of demarcation between the two is hazy and ill defined. The advent of the automobile brought many problems for the mechanic, the manufacturer, and the inventor. The rewards obtainable for improvement or advance in the industry were large and attractive. A consuming interest in the industry and in each and every advance therein was manifested by the people of the United States and England. It is not surprising that, out of all those engaged in solving tire troubles, two, one in the United States and one in England, should have approached the problem in the same way and offered a similar solution. The fact that a mechanic other than the patentee offered a somewhat similar solution does not, then, conclusively negative invention. Grant that in the instant suit (and each case must stand on its own facts, so far as invention is concerned) a border line case is before us. The determinative factors in such a situation are all on the side of the patent. Utility, large use, recognition by manufacturers, presumptions by reason of the Patent Office grant in the United States and in England, the conclusion of the District Judge, all unite to sustain the patent. The decree is affirmed. JENKINS v. UNITED STATES. was a member of Battery A, 103d Field Ar District Court, D. Rhode Island. November 10, tillery, that this organization was transport 1. Army and navy 1927. No. 1943. 512-Evidence held to show that soldier in France made application in due form for war risk insurance. Evidence held sufficient to establish the fact that a soldier in France a short time prior to his death made application in due form for war risk insurance in the amount of $10,000, and named his mother as beneficiary. 2. Army and navy 512-Limitation of action for war risk insurance runs from time of "disagreement" as to claim between bureau and claimant (World War Veterans' Act 1924, § 19 as amended by Act March 4, 1925, § 2 [38 USCA § 445]). Under World War Veterans' Act 1924, § 19, as amended by Act March 4, 1925, § 2 (38 USCA § 445 [Comp. St. § 9127-19]), a cause of action in a claim for war risk insurance does not arise until there is a "disagreement" as to the claim between the bureau and claimant, and limitation runs from that time. 3. Army and navy 511⁄2-Claimant to war risk insurance held not estopped to prosecute her claim by acceptance of automatic insurance, while it was pending in department. Plaintiff, who, after presenting her claim for $10,000 war risk insurance for death of her son, and while it was pending, at the suggestion of the bureau, and being without advice of ed overseas during the month of October, 1917, and that Jenkins was killed in the course of duty at or near Camp de Coetquidan January 1, 1918. At the time of Jenkins' death there was sufficient pay owed to him from which premiums upon a policy of insurance to the amount of $10,000 could have been deducted in accordance with the regulations and practice adopted by the government in such cases. In the trial of the case, and in the brief filed thereafter, counsel for the government appeared to concede that, if the deceased made application for insurance upon the regulation form and the same was delivered to a representative from the General Headquarters, the contractual rights of the claimant would be the same as if the application had been received by the Bureau of War Risk Insurance and the certificate thereon actually issued. This apparent position of government's counsel appears to be justified from the language of the statute (40 Stat. 409, § 400 [Comp. St. § 514u]), which provides that: The United States, upon application to the bureau and without medical examination, shall grant insurance, counsel, accepted automatic insurance under. final disallowance. At Law. Action by Annie M. Jenkins against the United States. Judgment for plaintiff. Charles Bird Keach, of Providence, R. L., for plaintiff. Randolph C. Shaw, Asst. Counsel, Veteran's Bureau of Washington, D. C., and Russell P. Jones and Fred B. Perkins, Asst. U. S. Attys., both of Providence, R. I., for the United States. LETTS, District Judge. This is an action at law, brought by Annie M. Jenkins to recover insurance alleged to have been taken out by her son, Charles E. Jenkins, Jr., in December of 1917, under the provisions of the War Risk Insurance Act of 1917 (Comp. St. § 514a et seq.) and the departmental regulations issued thereunder. the practice of the bureau in considering the application, together with the provisions of the statute and regulations thereunder, as the contract. Early in 1918, and about a month after she received the official notice of her son's death, the claimant made application to the Bureau of War Risk Insurance for the benefit of a $10,000 policy in her behalf, and while the consideration of this application was pending she received communication from the bureau, under date of August 6, 1918, inclosing a blank or form upon which to make application for automatic insurance. This application was made by the claimant, and under date of August 21, 1918, she was advised that an award of $25 per month from the 2d day of January, 1918, had been made to her. It appears, also, from the testimony and exhibits in the case, that at different intervals between the date of the filing of her claim for the $10,000 of insurance and March of 1927 communications were exchanged between the claimant and the bu reau in regard to the consideration of the claim, and in respect to affidavits and other It appears to be undisputed that Jenkins evidence which the claimant from time to It is alleged that the application made by said Jenkins was for insurance in the amount of $10,000 and that the beneficiary named was his mother, Annie M. Jenkins, the claimant in this suit. 22 F.(2d) 568 time furnished or caused to be furnished to the bureau. Under date of March 25, 1927, counsel for the claimant was advised that the evidence on file was considered insufficient to establish as a fact that Jenkins applied for United States government insurance while in service. Mr. Sasser, insurance advisor to the bureau, testifying on behalf of the government, stated that this letter of March, 1927, represented the final decision in the case and a disagreement between the claimant and the bureau. Suit was instituted by the claimant April 6, 1927, and the amended petition now before the court was filed July 19, 1927. Beyond this, the other important facts involved were in dispute. It appears from the testimony given and the contentions of counsel at the trial that there are three is sues for the court to determine, one of fact, and two of law: (1) Did Charles E. Jenkins, Jr., during December of 1917, make application for insurance in the amount of $10,000 and name his mother as beneficiary? (2) If such insurance was duly taken out, is the claimant barred by the statute of limitations? (3) Did the claimant, because of applying for and accepting so-called automatic insurance under the provisions of the act, become estopped in respect to her present claim, or by accepting automatic insurance waive her rights, if any, thereunder? [1] The claimant, in support of her contention that Jenkins made application in due course for insurance in the amount of $10,000, naming her as beneficiary, produced several witnesses who belonged to the same organization, and who were present with the deceased in France. Witness Adams, who was first sergeant of A Battery of the 103d Field Artillery, and who knew the deceased well, testified that Jenkins, around the middle of December, 1917, during the time that attention was being given to the insuring of members of that company, made application for the insurance alleged. He testified that Jenkins filled out the application for the insurance in the presence of himself, the battery clerk, and a representative from General Headquarters, and that the application blanks then filled out were delivered to the representative from G. H. Q. His testimony was unqualified in respect to the presence at the time of the filling out of the application of himself and the battery clerk, but not positive in regard to the presence at the time of the G. H. Q. representative. Witness Farrell, who was chaplain of the 103d Field Artillery and who knew the deceased, testified to an investigation or inquiry made by him, pursuant to a military order of his superior, to ascertain, subsequent to the death of the deceased, whether or not he was insured. He testified that he went to the company headquarters, made inquiry of the one in charge of the office of the clerk, and that the record there then showed that Jenkins had made application for insurance, naming his mother as beneficiary, and in the amount of $10,000. It appears also in evidence that the claimant received a letter from her son, written shortly before December, 1917, wherein he stated to her that, "when you receive this letter, I will have my $10,000 insurance for your benefit." This communication is, of course, of little evidentiary value, beyond indicating an intention and attitude of mind, close to the time when it is claimed the application was made, which was wholly consistent with the testimony of the witnesses. The testimony of the other witnesses in support of the claimant's contentions is at most corroborative, and some of it, particularly that of witness Barker, when analyzed, has little probative value. The testimony and evidence presented by the government in opposition to the testimony presented by the claimant is largely negative. There was introduced a transcript of a portion of the pay roll for December of 1917 of Battery A, 103d Field Artillery, which included the name of Charles E. Jenkins, Jr. This record disclosed no deduction entered for war risk insurance premiums. Witness Sasser testified that he had caused to be made a thorough investigation of the records of the Bureau of War Risk Insurance, and found no record that Charles E. Jenkins, Jr., had applied for insurance. There was also introduced on behalf of the government evidence that certain members of Battery A of the 103d Field Artillery made application for insurance during the month of January of 1918. Oral testimony had been presented by the claimant that the battery was 100 per cent. insured as of January 1, 1918. It appeared from the testimony, apparently without contradiction, that, because of the conditions existing in France relative to the handling of applications for war risk in surance during the period in question, many applications were lost, and that in such instances new or duplicate applications were filed. That fact would appear to be a possible reconciliation of the testimony presented by the claimant that 100 per cent. of the battery had applied for insurance before Jenkins' death with the evidence adduced in respect to that point by the government. In view of the positive testimony presented by the claimant that Charles E. Jenkins, Jr., did in due form make application for the insurance in question, and taking into account the bearing and character of the witnesses, it is not felt that the evidence introduced on behalf of the government satisfactorily meets it. The court therefore finds as a fact that Charles E. Jenkins, Jr., did during the month of December of 1917 make application in due form for war risk insurance in the amount of $10,000, and that he named his mother, the complainant, Annie M. Jenkins, as beneficiary thereunder. [2] We next come to the question as to whether the claim is barred by the statute of limitations. There being no limitation specified in the World War Veterans' Act (38 USCA § 421 et seq. [Comp. St. § 91272-1 et seq.]), under which this suit is brought, the application of the Rhode Island statute, providing that actions of this character must be brought within six years, is the only limitation to be considered. This statute, so far as relevant, provides as follows: All actions of debt founded upon any contract without specialty shall be commenced and sued within six years next after the cause of action shall accrue, and not after." Chapter 334, § 3, Gen. Laws R. I. 1923. Section 19 of the World War Veterans' Act, as amended (38 USCA § 445 [Comp. St. § 91272-19]), provides in part as follows: "In the event of disagreement as to claim under a contract of insurance between the bureau and any person or persons claiming thereunder an action on the claim may be brought against the United States either in the Supreme Court of the District of Columbia or in the District Court of the United States in and for the district in which such persons or any one of them resides, and jurisdiction is hereby conferred upon such courts to hear and determine all such controversies." This provision has been construed to mean that not until there be a disagreement between the claimant and the bureau does the court have jurisdiction to entertain or decide the controversy. Reece v. U. S. (D. C.) 17 F. (2d) 856. The court finds from the testimony as a fact that the disagreement conferring jurisdiction upon this court under the terms of said act arose on the 25th of March, 1927. This court is of the opinion that no cause of action accrued, within the meaning of the Rhode Island statute of limitations, until there was a court with jurisdiction to hear and determine the petitioner's claim. The rule is correctly stated in the case of Collier v. Goessling (C. C. A.) 160 F. 604, 611, as follows: "To start the running of a statute of limitation there must be some one capable of suing, some one subject to be sued, and a tribunal open for such suits." The circumstances of this case are not analogous to the case where some preliminary step needs to be taken before a suit may be instituted, and where the taking of that step and the performance of the condition precedent is entirely within the power of the claimant. In that class of cases the law is settled that the one having within his power the performance of the condition precedent cannot suspend the running of the statute through delay. In the present case it was within the power of the officials of the bureau at any time to terminate negotiations by unqualified disallowance, and to have thereby caused the action to accrue within the meaning of the Rhode Island statute of limitations. It was not, generally speaking, within the power of the claimant, or to be expected of her, to terminate negotiations and extract from the bureau a final disallowance. The court holds that the claim is not barred by the statute of limitations. [3] We now come to the third and last question: Did the claimant, by accepting the automatic insurance, under the circumstances become estopped, or waive her rights to the insurance in question? The claimant made application direct to the bureau for the insurance in question shortly after the receipt of news of her son's death. Not until 1925 did she have the advice of an attorney. While the court believes that the bureau, through its officials, acted throughout the negotiations with complete good faith and fairness, it does appear from claimant's testimony that she understood, though perhaps erroneously, that the bureau did not wish her to employ counsel. |