ST. CHARLES dAR
oonflicted with the ThaXter patent; fortha' reason that a]) the claims of the Crockett & Allen patent relate to the toothed wheel and dog, and to the swiveled spindle. These are.aH plainly outside of the Thaxter invention. They may be,:and are, patenta:bleimproV'ements on it, and thus protected fron:i ad0ption in USe by him. But this, of 'Course, cannot j ustify an appropriation of Thaxter's invention. ' The defendants also set up the defense of want of novelty, and contend 'that the plaintitrs invention was anticipated in seven prior patents: Smith's, 98,114; Roosevelt's, 178,382; Chinnock's, 197,826; 234,592; Sullivan's, 277,682; Woehrle's, 297,096jRoosevelt's, 306,179. In regard to this defense, Mr. Livermore says: "The patents put in evidence by the defendants as representing the state of the art relating to the 'Thaxter invention, merely show that. prior to:'the Thaxter patent, locking bolts hadin some been controlled or affeeted by devices; but, I have already none of them showor suggest a contrivance of any kmd for the controlhng the effeet of a door,knob or a door-bolt from a distinct point, and none of them show the com''bination of devices set forth in the Thaxter patent. or anything resemblinlj 'such combination ill construction or mode of operation." : This testimony is confirmed by a comparison of thEJse patents with 'thaxter's. Some of them are not automatic, but require the use of a key to turn back the bolt; and in no one of them is to be found any equivalent for the action of the locking slide with the tumbler. The defendants' lock, in my judgment, is an infringement of the first ,three claims of the plaintiff's pateut. Decree for the complainant.
CURRAN and others
ST. CHARLES CAR Co.
«(Ji1'cuit Oourt, B. D. Muaou'1'i, E. D. November 15, 1887.)
PATENTS FOR INVENTIONS-INFRINGEMENT-PARTIES-JURISDICTION.
In an aetion for an infringement of a patent, a third party asked to be Dladl1 a party defendant. alleging that it was the manufacturer of the machines whieh were claimed to be an infringement of plaintiffs' patent; that defendant was its vendee; that it desired to settle the question as to whether or not the maehines were an infringement of plaintiffs' patent. 130th the complain. ant and the third party were non·residents. Held, that such third party might be made a party defendant, aJ;1d thll eourt would have jurisdiction to enter a deeree,as to the question of infringement that would be binding on all parties. " , , In an a,c,tion for an infringement of a patent,. a third ,p.ar.t,YaSked, to be m,ad«' . a defendant and be allowed to tile a cross-bill, alleging that plaintiffs had sent out cireulars to persons who had bought maehines of sueh third party. claiDling:that the machines were an infringement on Rlaintiffs' patent, and to sue all whQ, bought or used maehines of sueh third party'r manufacture. The cross-bill askaq an injunction against plaintiffs to rll' t,hem from so doing until the final deeree in the case. The original de· fendant, a vendee of only one maehine. could not maintain such acrossbill.· Held, that a third party cannot be allowed to a defendant'lnd then file a cross-bill that could not ,have beenmaintllinedby the'ori&inal fendant. ' (,.
JohnJ. Curran and others, citizens of Dlinois, filed a bill against the St; Charles Car Company, a Missouri corporation, to restrain an alleged infringement of letters patent. Subsequently I the Boston Blower Company, a Massachusetts corporation, fileq. an application to be made a party defendant in said cause to· defend against the alleged infringement. The Boston Blower Company was engaged in the manufacture of the alleged intnnging apparatus, and the St. Charles Car Company had purchased and were using one of said machines. Other facts sufficiently appear in the opinion. Krwm &: Jonas, for oomplainants. Wells W. Leggett, for respondents. THAYER, J., (orally.) In the case of John J. Curran and others against the St. Charles Car Company, I have looked into the application made by the Boston Blower Company to be made a party defendant to that suit. The application of the Boston Blower Company is based upon the ground that the apparatus for drying lumber, which is now being use<;l by the St. Charles Car Company, and which is claimed to be an infringement of the complainants' patent, was purchased of it by the St. Charles Car. Company, and that it is under obligations to the St. Charles Car Company' to protect that compaoyagainst all suits for infringement. For that reason it desires leave to be made a party defendant, as it is engaged in .the manufacture of sucbapparatus, in order that there may be a full and determination of the question as to whether its apparatus is an infringement of the claims of any of the patents owned by the complainants. Under the circumstances it seems to me that it is a reasonable request, and that the Boston Blower Company should be allowed to come in and defend this action, iftbe court, by permitting it to come in and defend, will acquire such jurisdiction of the parties that the final decree entered in the case will be binding upon the complainants, and also upon the Boston Blower Company. I was disposed to think yesterday morning when the llpplication was made,that it was doubtful, in the event the Boston Blower Company was made a party,. whether the final decree in the case would be binding as between it and the complainants, in view of the fact that both are non-residents; but, upon further reflection, as jurisdiction in this class of cases depends upon the subject-matter, and not upon the citizenship of thepai'ties, I am of the opinion that the Boston Blower Company, by coming in and asking to be made a defendant, would thereby submit itself to the jurisdiction of the court in such manner that any decree this court might make on the question of infringement would be binding upon the complainants and upon all of the defenQQnt.'l. Therefore I shallpermitthe Boston Blower Company to be made a party defendant for the putpose of defending their vendee against the suit of these complainants. In connection with the application, however, the Boston Blower Company has presented a ctoss-bill against the complainants, and asked leave to file it. The cross-bill alleges in substance that the complainants, Cur-
CURRAN V. lilT. l,,'aARLES CAR CO.
ran & Co., have sent out circulars to various persons throughout the country who have bought the apparatus now being manufactured by the Boston Blower Company, wherein they charge that the apparatus man· ufactured by the Blower COIPpany is an infringement of their patents, and whereby they threaten to bring suits againot all persons who' buy .01' use such apparatus. The cross-bill further charges that such action of the complainants very seriously interferes with its business as a manufacturer; and the relief prayed for is that the court will award an injunction against the complainants restraining them from sending out such circulars or making such threats, and also restraining them from bringing of the Boston Blower Company, suits agahlst any licensees or pending the suit, in this jurisdiction. With respect to petitioner's 'cross-bill I will say that I have serious doubts whether it states any grounds entitling it to equitable relief, in view of the fact that it does not appear that there has yet been a single adjudication upon the question whether the Boston Blower Company's apparatus is or is not an infringement of the com plainant's patents. Ordinarily a patenteee may sue anyone who, in his opinion, is guilty of an infringement. I do not find that a cross-petition of this character has been entertained except in the case of Ide v. Engine 00., reported in 31 Fed. Rep. 901. In that case, a cross-bill, or motion in the nature of a cross-bill, of the kind involved in this Clise, was filed, and an interlocutory injunction was awarded against the complainant, but it was filed by one of the original defendants to the bill, that is, by one of the persons whom the complainant had elected at the outset of the litigation to make a defendant to the bill. In this case it will be observed that the corporation originally made a defendant could not maintain a cross-bill of this nature, because it is merely a vendee of one machine and not entitled to the relief prayed for in the cross-bill. In my judgment, waiving any decision of the question whethel' the cross-bill presents grounds for equitable relief, the court ought not to permit a third party to come in as a defendant, and then file a cross-bill which the original defendant could not maintain.even if it desired to do so. For that reason I shall deny the application of the Boston Blower Company for leave to file the cross-bill in question. -I will permit it, however, to come in and be made a party defendant, and to defend the claim that is preferred by Curran & Co. against the St. Charles Car Company. To that extent I think their motion should be granted, and they will have leave to be made a party defendant for that purpose.
'SPENCER' '0. KELLEY
«(Ji:,.cuit'(J6urt,.N.D. Ohio, E. D. February Term, 1887.) ·1.
AND BATTERy-By M'.A.srBR OF 'VESSEL-LIABILITY OFOWNEB. In l>y a seama,ll' against the owner of ,a vessel, for injuries from assault committed by the :master, in order to mak,e the owner liable, it must be sliown that, in the infliction of the injury complained of, the master was act· ing within the scope of his duty, and in the exercise of his control over the '
S. SAME. , Where a master of a vessel assaulted a seaman for an act of disobedience, after the emergency had passed, snd the act had been done,held, that the , master;walJ not in the line, of his duty, and the owner of the vessel would not be ,liablE! to fuesea,man fpJ,' any injury he mll,y have received.
SAME-By QAP'l'AIN-DISOBEDIlllNCE OF ORDERS.
In' a'suit for damages by a seaman against the owner of a vessel for injUries inflicted by the captain, where the seaman was in the wheel-house and refused to leave ,On the order of the. captain, or refused to change the wheel at der, or resisted him when ti:ymg to change it, held, that the master had the right to use such force as was necessary to remove him from the pilot;house, or to put the wheel in proper pO,sition; but that if he used more force thlln was reasonably necessary, or unnecessarily injured the plaintiff, the owner was liable. . had no right to assault him. ,
, If the seaman was rightfully in the wheel·house and had not disobeyed or-
ders or resisted the captain, then the
In October; 1886, the plaintiff, Edward Spencer, shipped on board a vessel called the J. H. Prentiss as a seaman, on board of which vessel, ,as the master of it, was Captain Gaines. The defendants, John Kelley and D. B. Sanborn, (Kelley alone being served; Sanborn not in court,) were at· the time the owners of the vessel. The vessel started from the harbor of Lorain on the ev¢ning of the twenty-seventh of October, and the plaintiff says that in the lake, shortly after getting out of the harbor, the master of the vessel, Captain Gaines, brutally, unpecessarily, and improperly assaulted and beat him by striking him repeatedly on the face and on the head, and throwing him down, and and cutting him on the head and face, whereby plaintiff was n;1ade senseless, and thereby greatly injured. F. J. Jc'G. O. Wing, for plaintiff. H. D. Goulder and Andrew Squire, for defendant.
WELKER, J., (among other things, charged the jury:) The relations of the seaman, the plaintiff, and the master have something to do with the rights and duties of each of these parties. The defendant was engaged in the maritime business on the lakes. He had to use his vessel through the instrumentality of agents, and, as the commander in chief of his vessel, he employed Captain Gaines, and all of the other employes on board of the vessel were the employes of the defendant as well as Captain Gaines, but they were under the control, direction, and command of the master of the vessel. If this injury had been d0ne by the carelessness of the co-