Findings of Fact Salary for October and November 1949 and for Dec. 1 126 C. Cls. through Dec. 8, 1949. $1, 105. 00 Salary for estimated 17 days of travel, December 9 through December 25, 1949--- 276.25 Annual leave accrued through December 8, 1949, 1964 hours @ $2.557-- 501.81 Annual leave to accrue during travel period December 9 through December 25, 1949, 94 hours @ $2.557--- 24.93 Gross amount accrued through Dec. 25, 1949....... Less charges to the plaintiff: 1, 907.99 No part of the foregoing balance was paid to the plaintiff, but was withheld to offset, in part, the loss of $1,677.14, attributed to negligence on the part of the plaintiff. 19. There is no evidence with respect to subsistence expenses incurred by the plaintiff on his return voyage. The plaintiff claims per diem travel allowances, over and above salary, in the sum of $276.25, on the basis that he was informed by a subordinate employee of the personnel section, Bremerhaven Post Exchange, that the travel allowance would be 17 calendar days @ $16.25, or $276.25. Such an allowance would be equivalent to the plaintiff's salary rate. The plaintiff's official travel orders provided that per diem allowances were authorized in accordance with current European Command Exchange Service directives. The terms of any such directives are not in the record, and there is no reliable evidence upon which a reasonable finding can be made with respect to what amount of travel expenses were allowable. It is reasonable to conclude that the European Command Exchange System considered the travel period as an extension of the plaintiff's time of employment, as the accounting statement, summarized in Finding No. 18, allowed the plain 902 Syllabus tiff his salary for the estimated 17 days of travel but contained no mention of travel allowance as such. 20. Because of the heavy passenger traffic on ships, the plaintiff was required to wait at Bremerhaven from December 8 to December 16, 1949, when he was afforded ship accommodations and departed for New York Harbor. The voyage was completed on December 29, 1949, four days later than the estimated time of arrival. The plaintiff's salary from October 1 through December 29, 1949, would be $1,446.25, with annual leave accrued for 208 hours @ $2.557, or $532.70. With the allowance of the November billet in the sum of $15, the gross amount to which plaintiff would be entitled would be $1,993.95. During this period, the plaintiff was advanced sums totaling $507.50, and was credited in the sum of $212.10 for his Federal income tax and in the sum of $8.50 for personal insurance, all of which totaled $728.10. The net amount to which the plaintiff was entitled upon the ultimate separation of his services as of December 29, 1949, was $1,265.85. 21. Had the plaintiff continued in his employment by the Army Exchange Service through January 11, 1950, the end of the contract period, he would have been entitled from an accounting standpoint to additional salary after December 29, 1949, for 12 days @ $16.25, or $195. 22. The facts as disclosed by the record are not sufficient to show negligence on the part of the plaintiff. CONCLUSION OF LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is not entitled to recover and the petition is therefore dismissed. VERNON R. CARLISLE v. THE UNITED STATES [No. 50263. Decided December 1, 1953.] On Defendant's Request for Judgment Patents; alleged infringement of safety device for vehicle passengers.— In a suit for alleged infringement by the Government of the United States letters patent No. 2,365,625, relating to a safety Findings of Fact 126 C. Cls. device for vehicle passengers, on the findings of the commissioner, to which no exceptions are taken and no brief filed by the plaintiff, the findings are approved and adopted by the court, and the defendant's motion for judgment is granted and the petition dismissed in an opinion per curiam, as set forth below. United States 97 Mr. A. Yates Dowell for the plaintiff. Mr. T. Haywood Brown, with whom was Mr. Assistant Attorney General Warren E. Burger, for the defendant. Mr. G. M. Paddack was on the brief. Opinion per curiam: Neither party has filed any exception to the findings of fact as made by the trial commissioner. The plaintiff has filed no brief. The findings are approved and adopted by the court. On the basis of these findings defendant's motion for judgment is granted and the petition dismissed. It is so ordered. FINDINGS OF FACT The court makes findings of fact as follows, based upon the evidence, the report of Commissioner Hayner H. Gordon, and the briefs and argument of counsel: 1. This is a patent suit alleging infringement of United States letters patent No. 2,365,625 issued December 19, 1944, to Vernon R. Carlisle, the plaintiff, on an application filed in the Patent Office on December 22, 1941. The patent relates to safety harnesses and its title is "Safety Device for Vehicle Passengers." The plaintiff, a citizen of the United States, owns the entire right, title and interest in the patent in suit. A copy of the patent in suit (plaintiff's exhibit I) and a copy of the Patent Office file wrapper and contents thereof (defendant's exhibit 1), which materialized into the patent in suit, are made a part of this finding by reference. The petition as filed included three other patents but during the pre-trial proceedings in this case and as indicated in the pre-trial memorandum of the Commissioner filed Jan 925 Findings of Fact uary 7, 1953, these three patents were withdrawn from the case by the plaintiff. STATE OF THE ART 2. Safety harnesses cover a field extending from children's gocarts to airplanes and in general consist of a retaining body harness made of straps or the like to be worn by an individual for the purpose of preventing injury by being thrown from a vehicle upon a sudden stopping or change of direction of movement of the same. As exemplified in the Meredith patent issued February 22, 1921 (defendant's exhibit 7), the illustration of which is reproduced herewith, such a body harness may consist of a pair of shoulder straps extending over the body of a child from front to Findings of Fact 126 C. Cls. rear, the front ends of these shoulder straps slidably engaging a body-encircling strap. The entire harness is fastened to a suitable base by means of four straps. The statement of invention as set forth in the specification is as follows: Further, the invention embodies an adjustable safety harness for children which will permit free movement of the latter upon a suitable base such as a chair, go-cart, etc., and at the same time prevent the child from falling. The United States patent to Twombly issued January 21, 1913 (defendant's exhibit 9) Fig. 1 of which is herewith reproduced, shows a safety harness for aviators which consists of a pair of shoulder straps extending from front to rear of the aviator and connected at the front with a bodyencircling strap. The rear portions of the shoulder straps and body straps are connected behind the body of the aviator to the frame or fuselage of the airplane. |