Court, E. D. Penmuliliania. Ueciember 8,1891.)
Jl'IIWTBI.u,.;-NEWllPAPIIB COMMENTS, Dt1RIi'G TluAL-PtmLIsmm REpOB'l'I
Where evidently inspired newspaper cOmments and reports of interviews. 01 so gross a nature as to be well oaloulated to prejudice a juryagainst.one of the parties tQ a cause, have been published during a trial, and presumably seen by the jury,;. _Ii.... trial will be granted where the'verdict is agamsUhe parties attacked. e.aoh .. .,trial was taking place daily MSl!lop.,lellding neW!i.Papers in the oity in ealoulated to prejudioethe jury against'one Of the parties, it Will pUblished be presumed that the jury saw the matter published. & Bum-WAIVEB OJ' OB1ECTION. " ., After the publioation during a trial of the flrst of a series of newspaper artioles reflecting against one of ;theparties,motion by that party WlIoll made for withdrawal of a jurOr oontinqanoe, whioh motion was refused. .Held, he was not bound to. motion upon the subsequent of other and more offensiveartioles;' and tbat hi' failure to do 10 was no groUnd' for refusing his appll;cation·'fora·tl'ew,trial..' '. .. ,
8.ula-;.i.PaESWPTION THAT .JURY READ A.BTICLES. ... n.1f 8 trial over. sereral day-s, the. iU..r'7 'separating after ..
At Law. This motion by plaintiffs for,,, llew trial action at law to recover an excess of duty alleged to have been-exacted on hat trimmings. Reported, 49 Fed. Rep; 26. The grounds of the motion were that the verdict the"weight of the evidencei /lnd tbat,. dUring' the · progress of'tbo'trial, staterbimts had been publicly made on behalf of defendant calculated to prejudice the minds of the jury. In support of the latter ground, various newspaper articles and reports were relied on. Ofthesaj thcr'tW'o followil,g,'publishedduring th4 'trial in leading daily as iIlustrations: Raia on the Treasury-'-SpecialAgent Hanlon Tells Some of Its Inner History-The Twelve . under Close Dress Trimmings, Linings, and Almost EVerything EISe' Imported; .Asked to be ClaSsified as Hat Trimmings, to the GreatDJlis afthe Government. "There was much comment in mercantile circles yesterday over the verdIct in the celebrated Hat-Trrimmings Case, decided on Friday against the gOvernment·. 'Tbe prompt notice of government officials ,that the case would be n.ot a surprise to .the victors in the first.stage of the warfare, while those who had battled to save the government millions of dollars were confident that the verdict"would not s'tand. Amoli'g those who, officially, have given the subject under dispute the gravest study. is Special Agent Marcus Hanlon. He plainly showed yesterday how earnest he was in his endeavor to prove that the suits of the importers were such as should not secure verdicts for them from intelligent jurymen. and, concerning the cases now on trial, said: ·I am only too glad to give my views, as I think that the people should know all of the facts in this attempt to loot the United States treasury. The issue is simply a question of fact,-whether the goods were chiefly used for making or ornamenting hats. There is no question of law involved; all such questions having been raised in the case that was decided on Friday.
Reported by Mark Wilkll Collet, EllQ.., of the Philadelphia Dar.
MEYER V. CADWALADER.
There are twelve samples in the case now on trial. Samples Nos. 1,2, and 3 Bre rihbons; No.1 being cotton-back velvet ribbons, the same as those in the Langfeldt Oase, and cannot be seriously claimed by the· importers as hat trimmings. In fact, <they ha,ve 'Baid that they. would abandon them.'
"MYSTERIES TO BE EXPOSED.
"Being asked if he meant to imply that the ribbons which were the subject of the supreme court's decision in the Langfeldt Case were not hat trimmings, notwithstanding the decision, Mr. Han IOn said; 'I do, most assll redly; and the jury in that case found that tbey were not chhlfly used for making or ornamenting hats. It .wasone of the many mYsteries that have occurred in these hat-trimming litigations, which I will expose when tbis case is decided.' The second sample in the present case is of silk and cotton binding ribbons, used for binding blankets. .The third is a plain black satin velvet ribbon, seventeen to twenty-six lines,'or about one and a half to two inches wide. i\lmost used for dress trimmings, as every woman in America knows,' Of course, ali infinitesimal quantity may be used for trimming ladies'hats. " ' "SOME GAUZY EXduSEs. '''Thenext class of goOds consists of samples 4, 5, 6,7, and 8.· No.4 is a silk guipure about eighteen inches wide. chiefly used for dress purposes. as every dressmaker can testify, but considerable of it is used occasionally. when fashion dictates. for hat materials or trimmings; but that IS not like il;& chief lIse.. Sample No. is silk and wool crepes. almost exclusively used for dress purposes. The same applies to samplel'\ 6 and8, which are silk erepOliS anQcrepes, nineteen and. nineteen and a half inches wide. I do not think a fashionable dreSSmaker can be found in the United States to testify that these are used to any extent for trimming or making hats. They ille well-knqwn dress materials, a qllestion. Sample No.7 is thhty-six inch crepe Hsse, a well-known article, principally' nsed for making ruchings; and it is an audacious thing for any person to claim they are chiefly used for hat trimmings.
"MR. TREMAINE'S CHANGE OF HEART.'
"Sample No·. 9 is white and colored satins, seventeen and one-half to twentyfour wide. Alp.l0St every man and womap. these goods ate chiefly used for linings or dress purposes. and the sml;\U percentage of these importations used in lining men's hats gives no warrant for importe):'s to claim that their chief .use is, for hat trimmings. In. Mr. Tremaine, ttie cbief for the bat-trimming syndicate, told. assistantappraiser at New York, (at least, so Mr. rep¢atedly told me,) that, jUllt before.tbe board of local. appraisers deqjded that they were hitt trimmings, Mr. Tremaine stated that tbe importerJ!! did not claim, nor did they expect to have, colored satins seventeen and one-half to twenty-four inches wide classed as hat materials; but he now comes :here, and will vigorously contest that they rue. Samples 10, 11, and 12 are common chappe plusbesand velvets. No. 10 is an eighteen-inch plush; the chief nse being for dresses and dress trimmings and manufacturing purposes, such as albums, etc. No. 11 is fifteen and one-half, sixteen, and eighteen inch colored velvets. chiefly used for dresses and dress purposes, scarcely ever used either as hat materials or a small quantity for cbildren's hats. The same applies to sample No. 12. which is fifteen and one-half, sixteen, and eighteen inch trimmings and dress purposes. black velvets; being always used for and plushes the government Mr. Hanlon says that regarding satins, will present overwhelming evidence from every leading dry-goods house. from Chicago'to Boston, that they are Dot 01l1e111 used fur hat trimmiligs.
'ltniust be remembered.' concluded the special agent. 'that this is not a fight of the treasury department alone :toprotect the United States treasury. as every citizen of the United Stutes is as much interested as the government. At the same time, I want to be distinctly understood that if Meyer and Dickinson can find people to prove twelve samples. 01" anyor th.m. are used for hat trimmings, they can rely on it that I w.ill give them all of the aid in my power to outain their money.'"
<I The Customs
Decisions-Millions of. Dollars Recovered from the Government : on Technical Errors in Tltriff Laws-Costly Hat-Trimming Cases-Sbarp , Attorneys Who Prosecute Claims on Contingent Fees· ... The Claimant ,80m eUmes Gets Fifty Per Cent., and Sometimes Even Less.
'" III III · · III III III ,. ·
A reference to the debates of congress, or to the minutes of the committee on ways and means, would show thl1t congress intended that silks, whether used or for any oth,ar purpose, were intended to pay a duty of fifty per cent. The trE>as\lry department interpreted the law in this way, and duty at fifty per cent. A' sharp attorney sawthe technical flaw in the,ac,t;and undertol,lk :t,o prosecute the claim for the difference between fifty per cent. anq tWt'nty per cent. The suit has been sUtcessful, and the. claimlmts, ,,",po have paid duty on these' goods for years at fifty per cent. under treasury decision, will recover mill iOi:J s of dollars,of which it is under· stood,the attorneJs in' the qase will receive fifty per cent. It is. indeed. a pbenoznenal case. in which the fees aggregateposslbly$1O.00J,OOO. Agent Tingle, of toe treasury department, speaking of the resultof.th}s suit, said t?me a few days ago: ·There is a m,ultitude of such cases (:0llling before the departruentevery year. There is no justice in them, for the importer has already sold his goods to the consum.er' on the lJasis of a flfty percent. duty. This duty has ueen paid by the consumer, therefore. and what t/l,e importer recovers fromthe government is simply an additional profit to him. tbe tariff is ever a tax Upon the people. it is in such a case as this. If these people had an equitable claim against the government,-that is, if they felttbey had been to pay an unjust duty,-they would bire an attorney, as any other would, and go to law about It. But, instead of doing tbl'Y listen to some attorney who tbinks he has found Ii tecbnical tla", ill"the law, and; as tbe suit costs them nothing, they allow it to be brought in their natnes. The chances are against their recovering; but the litigation ,costs nothing,and so the fifty per cent. of their claim, if tbey recover it, ilJ, SO much clellrprofit.' ... · Ill"
ml\ue liutiable at twent)',per cent,., and maullfactured silks, at fifty' per cent.
Hqt.Trimmi11g 04Sf} there was, no question of the intent of the
the act of M,arch 3, 1t:l83. hl\ttrimmings were
Afte:rthe ll'ppearanceof the first of the newspaper articles published, a motion to witbdrawajuror and continuethe case. This motion Wll8 deniel;!. Afterwards, articles of thesa,me tenor. and more objectionable, continued to be published; but no further motion for continuance was made. The verdict was in' favor of plaintiff only for a small amCiunt to be due, and was 8 practical defeat of plaintiff on the of:'fact ' , , Frank::f. Prichard aqd,!len?'Y,E. 7remain, (Cyrus E. Woods, Harry T. King8t<m,Aug'U8t'U8 R. S,tanWQod. and J()hn G. JOh1l801l,With them,) for plaintiff, cited Hil. New ';I'rials, 202; 2 Grah. & W. New Trials, p. 484.
JohnR. Read;U: S.Atty., and William H.Taft, Sol. Gen., CW. W. C'arr, Asst. U. S. Atty:, and W. P. Hepburn, Sol. of Treasury, with them,) fO! defendant. VcKee, There is no presnmption that the in1'1 read the articles. U. 8. v· · 3 Cent. Law J. 258. Plaintiffs. by allowing the trial to proceed without renewing their objeCtion, waived the right to move for a new trial on that ground. Davi.v v; Allen. 11 Pick. 468; MCCo1'kle v. Binns. 5 Bin. 34l:l; Fessenden v. Sager, 53 Me. 536; Bultiner v. People, 95 Ill. 394; Hunte1' v. fteol'gia,
43 Ga. 483.
ACHF..8oN, Circuit Judge. This action was brought by importers against the collector of the port of Philadelphia to recover· back an alleged excess of duties paid under protest upon certain imported goods claimed by the plaintiffs to be "trimmings," chiefly" used for making or ornamenting hats, bonnets, and hoods." As to all the articles involved in the suit, upon which there was any controversy before the jnry, the verdict was for the defendant. The plaintiffs move for a new trial, and in support of their.motion assign several reasons. But, in the view the court takes of the case, it is only necessary to consider one of these reasons, which during the course of the trial statements is based upon the iact, highly prejudicial to thA plaintiffs appeared from time to time in several dllily Dllwspapers of large circulation and influence published at the place of trial; some of these statements purporting to have been made to the newspapers by government officials, and all of them calculated to bias the minds of the jury,and prevent them from rendering a fair and impartial decision. The general character of all these publications can be inferred from the following head-lines, which appeared over an article relating to the trial, published while it was in progress, namely: "Importers and the Government;" "Blocking the Twenty Million Dollars Raid on the Treasury;" "Experts Give Testimony;" "Practical BusinesS Men COlne to the Aid of the Treasury, and Help to Shatter the Raiders' Claims." Another publication, during the trial, which was a special dispatch from Washington, and purported to quote remarks of the chief special agent of the treasury department to the newspaper reporter, condemning as unjust, for reasons stated, claims of importers to recover back excess of duties exacted from them, had, in conspicuous letters, these introductory head-lines: "The Custom's Decisions;" "Sharp Attorneys who Prosecute Claims. on Contingent Fees;" "Millions of Dollars Recovered from the Government on Technical Errors in Tariff Laws;" "Costly Hat-Trimming Cases;" "The Claimant Sometimes Gets 50 per Cent. and Sometimes Even Less." These striking head-lines are indications of the character of the statements which followed. But the most objectionable of all these publications was what purported to be an interview between the newspaper reporter and a special agent olthe treasury department, who seems to have had charge of the preparation of the government's case, and who was present at the trial. This interview, in substantially the same form, appeared on the same day in the issue of two different newspapers, and the statements therein contained, as coming from this government officilil, bear marks of very
delibera.te preparation. .This official, as reported, undel'tpok, in a newspaper interview intended fo.r pnblication, to discuss the merHs of the case on trial with respect to each particular kind of goods involved in the controversy, and to pronounce that their chief 1l,se W3,S for other specified purposes than the trimming of hats, stating faets to support his assertions; and he fllrther stated that one of the plaintiffs' counsel, whose narnewas given, and who was described as "the chief lawyer for the hattrimrning syndicate," had declared to a certain named government appraiser that the importers did not claim nor expect to have certain satins in controversy in this case as hat materiaJs, but, he added, "he now comeS here, and willvigoronsly contest that they are."· In one of the newspaperscoDtaining this interview this treasury agent is represented as declaring: "I am only too glad to give my views, as I think that the people should know all the facts in this attempt to loot the United States treasury." There has been no sort of denial of either the genuineness or the accuracy of-these published interviews. It is idle to say that there is no direct evidence to show that the jury read these articles. They appeared in the daily issues of leading journals, and were scattered broadcast over the community. The jury separated at the· close of each session of the court, and it is incredible that, going out'into the community; they did not see and read these newspaper publications. That these· published statements were well calcUlated to prejudice the jury against the plaintiffs and deprive them of a fair trial is a proposition so plain that it would be a sheer waste of time to discuss it. Good ground, therefore, here appears for setting aside the verdict. But it is strenuously urged on hehalf of the government that counsel for pHiibtiffs "waived all right to object to a verdict on account of these articles, because they did not openly call the attention of the court to the same, enter their objection to further proceeding with the trial, and except to an adverse ruling on the application." The fact, however, is that, immediately afterthe earliest of the newspaper articleB appeared, the plaintiffs' counsel did make all application at chambers to the judge presiding at the trial for the withdrawal of a juror, and thec'ontinuance oHbe case uritil the next term, on the ground that a fair trial had become ifupossibleby reason of said publications. This application was resisted by cotlllsel for the I?;overnment, and, for reasons which then seemed satisfactory to the judge, was refused. What more, then, was incumbent upon the plaintiffs? It is true that the articles which they brought to the attention of the judge were less objectionable than those which subsequently appeared, and to which particular reference has been made in this opinion. But we think the plaintiffs' counsel had done their whole duty in the premises, and were under no obligation to renew their application to stop the trial. Under all the circumstances, a waiver cannot justly be imputed to the plaintiffs. For the reason we have discussed, the verdict must be set aside, and a new trial granted; and it is so ordered· . BUTL,:&J:li, District Judge, request of Judge ACHEsoN,sat with hiln .at the hearing of the "iotion for.a new trial, concurs in the opinion and order.
P:.uU.N II. IlLATEB.
BEAMAN tl. SLATEB.
(CCrcuU Court, So D. New York. January l!I'I, 18l11.)
Ool"l!'l'lnt·CL.Ulf-WHEN MAUITAIlII'ABL_TORT AND
When an action, brought under the New York Code, sounds partly la eo!I.tracl aBo' partly in tort, a counter-claim may be maintained for a balance due under the contract, and the fact that the evidence is direoted mainly to proof of the iort does not depnn the defendant of the benefit of the counter-olaim. ' In this action by a cbarterer for damages caused by tbe breacb ofa obarter-party, in that tbe vessel was delayed by the defective condition of her machinery and the negligence of the engineer, the charterer was entitled to recover extra expenses an!! probable profits lost by tne delay, and the' owner may set off against this sum .. unpaid balance due,for tbeuse of the vessel. AS OW:Nl!lts: Where, one member of a partnership which owns a vessel is alone sued for t.he breach of a charter-party, he may counter-claim for t.he entire balance due 'llllder \he contract for the use of the vessel. Hr>pk£ns v. Lane, 87 N. Y. 601, distinguished.
.. 1!I1IIPPIIII()--BRIUClI OJ' ClIARTBB-PARTY-COUIIITER,CLAIM.
At Law. Action by Samuel H. Seaman against John W. Slater for damages for breach of a charter-party. For former report, see 18 Fed. Rep. 485. Now heard on motion for a. new trial. Granted. John.E. Pars0n8, for plaintiff. Franklin Bartlett and Wm. G. Willson, for defendant. SHU'MAN, District Judge. This is a motion by the plaintiff for 11 new trial upon the ground oferrors in the charge of the court,and that the diet of the jury was against the evidence in the cause. This action was brought to recover damages which the plaintiff, as surviving partner-of Cromwell &00. , who were charterers ofthe steamer Hagar, had sustained; either by the breach of the charter-party, arising from the unfit condition of the ,boiler, or by the negligence of the engineer, whereby the vessel was injured, the voyage was delayed, e:l(tra expenses were caused to the char;. terers, and consequential damages were caused by their inability. in conl. sequence of said delay, to, obtain a return cargo, which had been agreed to be furnislJed, and which was not furnished by reason of the rival ofthe vessel. The plaintiff also claimed to recover, and this claim was not denied upon the trial before me, $1,734.10, and the interest thereon j that principal sum being the amount paid by the plaintiff's firm for the vessel's share of general average. The charter-party provided that the owners were to receive $7,000 for the use of the vessel, and for each day's detention above seven days, through the fault of the charterers, the sum of $250 per day; 83,000 of the $7,000 was paid. The defendant's answer contained a counter-claim for $4,000, and 81,250 for five days' detention in New Orleans. The substantial question of fact for the jury was the amount, if any, of consequential damages arising from the loss of return freight. The jury reported tha.t they could not agree upon this point, but were urged by the court to come to an agreement, and returned a verdict from which it appeared tha.t they fouud 'the