PULLMAN and another
v. B. & O. R. Co.
(Oircuit Oourt, n. Maryland. - - ,
PATENT-PRELIMINARY INJUNCTION-ALLEGED INFRINGEMENT OF PATENT
6,648-IMPROVEMENT IN SLEEPING
CAns.-Preliminary injunction refused: (1) Because, upon the affi. davits produced, the court was not prepared to determine the validity of complainants' patent, or the question of the infringement; (2) because the threatened damage was not of such irreparable character as to require an injunction; (3) because the threatened damagllll were easily ascertainable, and the defendant abundantly able to pay.
Steele, Stirling, Carter, Lochrane, Thurston, Dickerson, Offield, and Lincoln, for complainants. Latrobe, Cowen, Phillipp, Munson, Frick, and CroBB, for defendant. BOND, C. J. The bill in this case is filed by complainants to prevent the defendant company from using upon its road certain sleeping cars of its own construction, which, it is alleged, are infringements of the complainants' patent; and, although the case has been ably argued, as if upon final hearing, the motion really before us is for a preliminary injunc. tionpendente lite. To show the infringement, the complainants have filed numerous affidavits and the sworn opinion of experts; while to show the want of novelty in the patent, and the prior use of what complainants claim as their patentable combination, the defendant has filed connter affidavits. Upon these papers, with the bill and answer, complainants' affidavits in rebuttal, the motion is to be heard. In order that the court might rightly understand what is claimed as patented, and what is asserted to have been in use before complainants' invention, we have been provided with models of all antecedent attempts at making sleeping cars. Upon reading these affidavits, and the other papers in the cause, we do not feel warranted in determining any question of violation or infringement between these parties, but will confine ourselves to the motion before us. The proofs shown
PULLMAN V. B. & O. B. 00.
us upon the hearing all ex pm·te. There has been no oross-examination of witnesses; and, take it altogether, the violation of the complainants' patent does not seem to us so clear and without doubt as to' authorize us at once to issue the injunction prayed for. The interests involved on each side are very great; and were we to grant the motion upon evidence of the character now furnished by the complainants, contmdicted by evidence of as Iowa grade by the defendant, we might do as much ine· parable injury as we are asked to prevent. This is a matter addressed to the sound discretion of tho court. It is not a matter of oourse, upon the presentation of a patent, which prima facie establishes the right of the patentee to the thing patented, accompanied by an allegation that the defendant is violating it, that a preliminary injunction will issue; but it must appear likewise that, if the writ of injunction does not now issue, the complainants will be irreparably injured, and that no subsequent decree of the court oan sufficiently ascertain and make good their damages. For ten years the defendant company has, under contract with the complainants, been running sleeping cars of the complainants over their road. It hag now built certain cars of its own, as it is alleged, after the patent of the complainants, which it purposes to run over the same line of road. What irreparable injury does this cause? The profits accru-, ing to the complainants for the use of the cars of ants hitherto run by defendant under the contract between them are known, and there can be no difficulty in ascertaining the loss to complainants by the use of the cars defendant proposes to run. But to grant this motion 'upon these ex parte affidavits would be to unnecessarily deprive the defendants of the use of a large capital invested in the building of these cars before the question of infringement is adjudicated. If the defendant company were insolvent and not answerable in damages, it would afford strong reason for the present interference of the court. But this is not pretended. It is alleged, and urged strongly upon the court in argument, that the complainants have a system of contracts with
a large number of railway companie!:! in the United States to run the cars manufactured under their patent exclusively over their roads, and that to allow the defendant company to run its own cars over its road and those connected with it would induce other roads to do the same thing, in violation of their patent. We do not see how this fact, if it be true, ought to induce us to grant this motion upon the evidence presented. If the complainants have contracts with other railroad corporations for the use of their cars, the refusal of defendants to enter into a similar contract can in no way affect their validity. If it be urged that the use by the defendant of its own cars breaks the unity of the Pullman system, the proof shows that it never was universal; that many trunk lines of railway have not entered into the system; and it does not appear to us to be shown to promise any such immediate and irreparable damage, if the defendant company does not so enter, as would warrant us in granting this preliminary injunction. We decline to grant this motion, therefore,-First, because, upon the character of the evidence furnished, we are not prepard to determine the extent or validity of complainants' patents or their infringement; second, because there is, in our judgment, no case presented of such threatened immediate and irreparable damage as would warrant us in depriving the defendant, before final hearing, of the use of the cars it has built; and, third, because, in the judgment of the court, whatever damages the complainants may suffer between the filing of this bill and a final decree can easily be ascertained upon reference, for which damages, when determined, the defendant company is abundantly responsible.
BOLMES V. O. & O. BY. 00.
O. & C. Ry. Co.
(Dtstrtct Court, D. Oregon. --,1880.)
1. DEATH, ACTION FOR -Although an action may not lie at common law to recover damages for the death of a person, it will at the civil law, and therefore semble that it will in admiralty. 2. lllARI:NE TORT.-A marine tort is one that occurs on any public, navigable water of the United States, whether caused by a wrongful act or omission, and the proper district court, as a court of admiralty, bas jurisdiction of a suit to recover damages therefor. S. RIGHT GIVEN BY STATE BTATUTE.-The jurisdiction of the national courts does not always, nor often, depend upon the origin of the rights of the parties; and where a state statute gives a right, the same may be asserted or enforced in such courts whenever the citizenship of the parties or the nature of the subject will permit.
4. SAME.-The right given by section 367 of the Oregon Civil Code to an administrator, to recover damages on account of the death of his intestate from the party by whose act or omission such death was caused, may be enforced in the national courts.
5. SAME.-SmT IN ADMIRALTY.-When a passenger on the railway ferryboat, plymg accross the Wallamet. river between East Portland and Portland, was drowned by reasonof the negligence of the owner of the boat or its servants, a marine tort was committed, for which a suit may be maintained in the district court by the administrator of the deceased to recover the damages given therefor by section 867. supra.
In Admiralty. Sidney Dell, for libellant. Joseph N. Dolph, for defendant. DEADY, D. J. This suit is brought to recover the sum of $4,900, on account of the death of William A. Perkins, the libellant's intestate, alleged to have been caused by the negligence of the defendant on November 16, 1868, while transporting said Perkins across the Wallamet river, at Portland, on the defendant's duly enrolled steam ferry-boat Number One. Substantially, the libel alleges that on September by the order of the county court of Jackson county, Oregon, the libellant was dnly appointed administrator of the e.,tate