Concrete Appliances Co. v. Gomery

• Decision Date: 24 July 1923
• Docket Number: 2982.
• Citation: 291 F. 486
• Parties: CONCRETE APPLIANCES CO. et al. v. GOMERY et al.
• Court: U.S. Court of Appeals — Third Circuit

291 F. 486

CONCRETE APPLIANCES CO. et al. v. GOMERY et al.

No. 2982.

United States Court of Appeals, Third Circuit.

July 24, 1923

Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.

Suit by the Concrete Appliances Company and another against John E Gomery and others. From a decree for defendants (284 F. 518) plaintiffs appeal. Remanded for modification, and, as modified, affirmed.

Patents 328-- 948,719, for apparatus for elevating and distributing concrete and plastic material, held invalid for want of invention.

The Callahan patent, No. 948,719, for an apparatus for elevating and distributing concrete or other plastic material, and comprising a tower, a horizontally movable boom, a conduit carried thereby, and means for raising the plastic material and conducting it to the conduit, held invalid for want of invention, in view of the state of the prior art and related arts.

Arthur M. Hood, of Indianapolis, Ind., Stephen J. Cox, of New York City, and Cyrus N. Anderson, of Philadelphia, Pa., for appellants.

George B. Jones, and Thomas H. Sheridan, both of Chicago, Ill., and William Steell Jackson, of Philadelphia, Pa., for appellees.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON Circuit Judge.

In principle, this case concerns the use of gravity in conveying mobile substances from an elevated common central point to various working points; in application, to the distribution of 'wet' or 'mush' concrete. Referring to the above general principle of conveying mobile matter by gravity, we have the ageworn practice of lifting water by power to a reservoir and by gravity distributing it through conduits to a fixed point or by hose to diverse points; in other words, the problem of lifting it to a gravity-sufficient height, of there accumulating it in storage, from thence conveying it by conduit to a determined place, or by hose to an optional point of use. Naturally such general practice was early applied to the movement of such a mobile thing as grain, when its volume became large, and the word 'elevator' became a synonym for the raising, storage, and distribution of grain, into individual cars, the ends of the same car into ships, and, indeed, into separate hatches.

As an example of the common practice the proof is that prior to 1905, and since then, practically all elevators delivering grain to ships have been equipped with pipes, extending downwardly from the side of the elevator and supported by horizontally movable booms for directing the outlet of the pipes to any desired part of the boat, within range of the apparatus. But not only was such moveable conduit's discharge pipe handled by the boom on the elevator, but where the change of the tide or the lower level of the ship, caused by loading, made it desirable, a second or supplemental hopper and an additional spout were suspended from and handled by a boom and tackle on the ship itself. This supplemental hopper received the discharge from the elevator spout and discharged it into the vessel, as change of tide or the settling of the vessel necessitated. The proofs further show that, where two ships were lying side by side and it was desired to spout the grain to an outlying or 'second-off' one, it was done by such elevator appliances in spite of the long stretch required. It was also a common practice to provide the spout with a telescopic extension end, by which further horizontal reach was effected, due to the varying positions of the ship. Moreover, it will be noted that on such apparatus the function of the boom was not only to raise, lower, and swing the spout to reach the hatches of the ship under different conditions of load and tide, but also to draw up and house the spout, so as not to interfere with the navigation or movement of the vessel.

The same general type of grain elevator appliance was used for loading cars. The proof is that:

'The hopper ends of the spouts were constructed with an enlargement, forming hoppers, and grain spouts were connected to them in the elevators. * * * All types of movable and fixed spouts were used in grain elevators at that time; of the movable type, those in the grain elevators were either portable or so constructed that they revolved around a fixed point. * * * Outside of the buildings they had spouts for shipping grain to cars, which were generally fixed in position with a telescope and either with one opening or two, so arranged that grain could be thrown into either end of the car.'

Without further statement, it will be seen that the steps of lifting grain to get gravity, of storing to get quantity, of chuting to get delivery, and of boom swing and trough shift to vary locality of delivery, and also of duplication of these shore appliances by supplemental boom and conduit on shipboard, had all been advanced to a high state of efficiency and delivery point variation in elevator grain practice.

The same may be said of coal practice, the proofs showing the contemporaneous use of 'coal chutes in connection with coal elevators in stock piles, where the coal was elevated and spouted out through the side of the building into a stock pile and into bins. The spout would be supported in a similar manner to the spouts heretofore referred to as shipping spouts in connection with grain elevators'; that is, 'that the spout could swing in any direction and was suspended from a swinging boom.'

Later, when concrete docks, piers, and the like came to be built, it was quite natural for contractors to use in building them the apparatus used for grain chuting, and to handle and chute concrete in the same way; and such, the proofs show, was the case, as will be seen by reference to but one or two operations. In November, 1906, a concrete foundation for an intake and pumping station was built by the Great Lakes Dredge & Dock Company at Gary, Ind. Here a car was used on which was a mixer, from which the concrete was discharged into a hopper or chamber, and from which chutes, suspended from a boom located on the car, chuted the mixed concrete down to the cofferdam, where it flowed either into piles or was poured in place; the dam being some 40 feet in width and of great length. The chutes in the apparatus could be moved up, down, and sideways. The apparatus was used for several months, and was constructed by a man who had never seen concrete so handled, but had seen it used in grain elevators. In addition to the testimony of the builder of this apparatus, another witness testified as follows:

'The first apparatus we used was a concrete mixer set on a flat car, and the concrete was spouted from the mixer into the bottom of the excavation. We called it chutes then. There was an improvement made on this apparatus to distribute the concrete from one location to another within a radius controlled by a boom holding the chutes or spouts. The ends of the spouts were-- the location of the ends of the spouts were placed by swinging the boom that carried the concrete spouts.'

The same man the next year used similar apparatus in building a concrete dock at the same place. In this case the apparatus was placed on a scow, a mast being placed in front of a mixer, a boom placed on such mast, and a chute suspended by tackle therefrom. As to its mode of operation, the constructor testified:

'It is dumped out of the mixer into a bucket, and conveyed up with a cable in a bucket, and dumped into a hopper, which is fastened on the tower; and we have one 50-foot section of 12-inch pipe carried by two booms and fastened on the bottom of the hopper, and as occasion requires, placing concrete in forms, we have 8-foot sections or 10-foot sections to take on or off.

'Q. How could you change the point of delivery of the lower end of the pipe? A. By adding on a section 10 feet long, or taking it off, as occasion required.

'Q. Was there any other way to change the point of delivery? A. By swinging booms and swinging pipe.

'Q. Was this apparatus successful? A. Very successful.'

Another witness described it thus:

'This apparatus is a concrete equipment built on a scow, consisting of a concrete mixer at the proper elevation, so that concrete could be spouted into the concrete dock, and above the mixer was constructed two hoppers, one for stone and one for sand this being at one end, and the other end of the scow being the cement shed. A boom was placed to support the chute, for the purpose of raising the spout so that the concrete equipment could be moved-- I meant to state for the purpose of spouting the concrete in the forms for the dock, and also to raise the spout when moving the equipment ahead.' He further testified that the number of...