IN RE VINTSCHGER.
(r.itcult Oourt, 8. D. New York. Aprillll,1892.)
TARtFl!' ACT-SIMULATED TRADE-MARX-MANDAMUS.
Certain merchandise, consisting of metal polish, was imported into the port of New York on the 15th of March, 1892. The collector of oust<>ms declined to admit the merchandise to entry, on the ground that, pursuant to the provisions of section 7 of the tariff act of October 1. 1890, he had received from the secretary of the treasury facsimiles of a certain trade-mark filed in the treasury department hy "The Meyers Putz Pomade Company," which facsimiles were duly recorded at the New York customhouse pursuant to instructions contained in a circular of the treasury departmenll dated October 31. 1890, and that said collector had decided that the trade-mark borne by the goods attempted to be entered simulated or copied the trade-mark so filed and recorded at the customhouse in New York. On an application to the circuit court for amllndamU8 to compel the collector to take evidence as .to the validity of the trade ·mal'k filed by the Myers Putz Pomade Company in Washington, and the right of the importers to use the trade-mark upon their goods. held, that tile circuit court had no jurisdiction to grant a mandamus, and that the question whether the decision of the proper customs officers that any pal'ticular import was within the prohibition of the statute was reviewable by the courts, and, if so, in what way, was not before the court in this proceeding.
Application for Mandamus. This was an order to show cause why a mandamu8 should not issue to compel the collector of the port of New York to take and hear the evidence and proofs of the applicants, composing the firm of Markt & Co., and to determine whether one E. Meyers, of the Meyers Putz Pomade Company, were the owners of an alleged trade-mark, and whether, notwithstanding the facsimile of the alleged trade-mark of the Meyers Putz Pomade Company on file in the office of said collector, entry should be refused of certain goods imported by the said firm of Markt & Co. It appeared from the affidavit upon which the order to show cause was granted that the applicants, composing the firm of Markt & Co., doing business in New York city, imported the merchandise in question, namely, a certain quantity of metal polish, called "Universal MetaH Putz Pomade;" that on or about the 14th day of March, 1892, the firm of Markt & Co. attempted to enter the same at the customhouse in the city of New York, but that the collector of said port refused to allow the goods to be entered, upon the grounds that he, the said collector, had received from the secretary of the treasury a certificate to 1he effect that the Meyers Putz Pomade Company had, in accordance with section 7 of chapter 1244 of the LawEl of the United States of 1890, (the tariff act of October 1, 1890,) caused to be deposited with the department of the treasury a facsimile of a trade-mark which the said Meyers Putz Pomade Company claimed as domestic manufactures, and that he, the said collector, had neither the power nOr the time to investigate the question whether or not the Meyers Putz Pomade Company were domestic manufacturers, or the rightful owners of the said trade-mark. ' The affidavit of the said applicants for the mandamus further set forth that one E. Meyers, who had been succeeded by the Meyers Putz Pomade Company, was formerly the agent of' the firm of Schmitt & Foerderer, the manufacturers of tbegoods in Germany, and as sucb agent,
and as long ago as 1886, imported goods into this country under the identical marks and trade"marks which he and the Meyers Putz Pomade Company now claimed were their property; further, that the Meyers Putz Pomade Company was a corporation incorporated under the laws of West Virginia, having its principal office at Boston, Mass., and that trade-l11ark which the Meyers Putz Pomade Company claimed, was derived frolD one E. l\!eyers, who was formerly the agent of said firm of Schmitt & Foerderer, which latter firm had used such trade-mark long prior t(>its alleged adoption by the Meyers Putz Pomade Company. On the return of the order to show cause the affidavit of the collector of customs at New York was read, by which it appeared that on or about the 19th day of February, 1892, the deponent, as such collector, received from the treasury department at Washington a letter dated February 18,1892, inclosing the two facsimiles of the trade-mark therein referred to of the Meyers PutzPomade Company, which facsimiles were duly recorded at the New York 1892, pursuant to instructions contained in the circular of the treasury department dated October 31, 1890, (printed in Synopsis Decisions of the Treasury Department for 1890, No. 10,309;) that the merchandise attempted to be entered was ipv.oiced from Wahlershausen-Cassel, Germany, as "metal polish," conin small. tin boxes, having on the top of each an inscription or trade-mark, which boxes were ill condition to be put upon the market of this country and sold; that said merchandise was examined according to, law by t,he appraiser of said port of New York, who, on the 23d day 9f 1892, made his offioial return thereof to deponent as such coltherein. among other things, "trade-mark illegal;" that as such collector, thereupon, exercising due and proper care, Glecided that the articles ,of merchandise imported as above did copy or simulate the trade-mark of "The Meyers Putz Pomade Company," of which 'facs\miles were received from the treasury department. and re(Jorded, lind tiled in the New York customhouse, as above set forth; and such articles of merchandise should not be admitted to entry at the Qustqmhouse and of ,New York. Section 7 of the tariff act of October 1, 1890, above referred to, is as . ,: "Sec. 7; That on and after March first, eighteen hundred and ninety-one, arUcle imported merohandise which .shall cupy or simulat.e the name or trade-m!lrkof any d.omestic manufacture or manufacturer shall be admitted to 'flotry at anyeustomhouse of the United States. And, in order to aid the officers of the customs in enforcing this prohibition, any domestic manufactfu'ter wbo has adopted trade-m'arks may reqUire his and reSidence and a dl!sCriptioo Of his trade-marks to be recorded in books which shall be kept for that purposein tbe.department of the treasury, under such regulations as the secretary ot the treasury· shall prescribe, and may furnish to the department fllCsimiles of such trade-marks; aoll thereupon the secretary of the treasury sball Cll lise one or more copies of the same to be transmitted to each collector df other proper officer of the customs." .
of the applicants for the mandamus it was argued that rel\.pplications had been made for relief both to the collector of the
,IN ];tE VINTSCHGER.
port and to the secretary of the treasury without effect, and that, unless the court in"te,rfered by mandamus to cotnpel the collector to examine into the question of the legality of the alleged trade-mark filed in the treasury department at Washington, and the right as claimed by the importers to use the same as their own, the importers seemed to be without remedy, as their merchandise 'was deteriorating in value, and possession thereof was refused them by the collector. On behalf of the collector it was urged (1) that the circuit court of the United States had no authority or power to issue a writ of mandamus as an original and independent proceeding; the United States attorney citing, among other authorities, Bath Co. v. Amy, 13 Wall. 244; Mclntirev. Wood, 7 Cranch, 504; McClung v. SiUimo,n, 6 Wheat. 601. (2) That, even if the court had jurisdiction. mandamus would lie only where there is a refusal to perform a ministerial act involving no exercise of judgment or discretion; or where the officer refuses to decide, and the aggrieved party could have the decision of the officer reviewed by another tribunal; citing Commissioner v. Whiteley, 4 Wall. 522; Decatur v. Paulding, 14 Pet. 515. (3) That more cannot be required of a public oftlcer by mandamus than the law has made it his duty to do; citing Ex parte Rowland, 104 U. S. 612. Goepel & Raegener, for applicants. Edward Mitchell,U. S. Atty., and Jamea T. Van Rensselaer, Asst. U. S. Atty., for collector.
LACOMBE, Circuit Judge. Under the provisions of section 7 of the tariff act of October 1, 1890, the question whether a domestic manufacturer has adopted a name or trade-mark, and whether any articles of such name or trade-mark, imported m,erchandise do copy or are to be determined, in the first instance, by the administrative officers to whom the execution of the ta.riff laws is intrusted. The provision of the same section that a record shall be kept in the treasury department, describing such trade-marks, does not make that record conclusive evidence of the fact that the person who "may require his name and residence and a description of his trade.marks to be recorded," is a domestic trade-mark. The record book is, in the lanmanufacturer, or has guage of the statute, but an "aid" to the customs officers, and the prohibition .is directed only against articles which copy or simulate the genuine trade-marks of bona fide domestic manufacturers. Whether the decision ofthe proper customs officers that any particular import is within the. prohibition is reviewable in the courts, and, if so, in what way it may be presented for review, is not now before this court. This appliiafor a mandamus to compel the collector to examine into the facts, and decide whether entry should be refused or not, and it is abundantly settled by authority that the power to issue a writ of mandamus as an original and independent proceeding does not belong to the United States circuit courts. Bath Co. v. Amy, 13 Wall. 244. Motion denied.
1'EDEL\L ' BEPOllTJllB t
NEWYOmc& T.S. S. Co. ".
«)'Vcuit. Court Qf',Appeau, Secc>ncl QircuU. February 16, 1899.) No. 42,"LSTER A.ND SBRVA.NT-PBRSONA.L INroRIllI_CONTRIBO'l'ORT NBGLIGBNCB.
, . Iu an actiou .by a sailor for personallujuries caused by the ueglig"mt haudliug of ".. winch while the vessel was discharging cargo, it appeared that the winch was operated by a man from shore, acCording: t.o ,whistle signals given by the sailor, ,and,. his neglect of the .caused. the injuries. Plaintilf testified that tbe winlihman had informed hUh of his and requested him to whistle loudly. 'The winchmau'e carelessness, had causedtbe breaking of some barrels hefore the accident in question, llut np to that time (an hour or more) he had obeyed the signals 'as Held, that· it' was . refuse an instruction that plaintilf's OOntlnUlng bis work with knOWledge, 'of tbewinchman's incompetency would pre!!l.ud,s a recovery" since it is for the to determine whether or not be was justi"fil!d.ln' believing, until tll.e acoident,'tbat the wiuohman oould handle the winoh propefiy. ' Statements made by. the wluchman tbe saUor in reference to bis deafneu are ,oompeteilt'evidence as part of the resgest<& , The statements tile wiDobman's, deafness, and bis carelessness in breaking tbebarre.Is by lowerlng tbem too rapidly,; are mord than a sCintilla of evidence of lu41cient to Justity the submission of the question to the ury. , The circuit courts of: appeals bave :no powElr' to review n decision refusing to grant a new triai on the ground that the verdict was &iainst the evidence, and was for excessive damages. ''1 Fed. Rep. 88, atllrmed.
I. ApPBAL-RBVIBW-RBFUSAL OP NEW TlU:u..:...ExCESSIVB VBRDICT.
Error to the Circuit Court of the United States for the Southern Di&trict of New York. . :At Action by Charles Anderson against the New York & Texas SteamshipCompany fOT personal injuries. Verdict and judgment for $4,141.67 for plaintiff. 47 Fed. Rep.3S. Defendant brings error. Affirmed. Bulkr j Stillman ere Hubbard, (Wilhelm", Mynderse, of counsel,) for plaintiff in error. . George L · .CarliBle,' for defendant in error. Belore WALLACE and LACOMBE, CiroUit Judges·
.'PER CtmIAM. This is 'a writ of error by the defenffant In the court below to re\'iewa judgment of the circuit court, entered upon the verdict of It jury for the phHnti'ft'. 'l'he plaintiff was a seaman, 'one of the crew Of the steamship San,Marcos, and while he was helping discharge cargo at ,the port of Key W'f!st 'received severe injuries by' being struck by lome of the cargo while itW8S raised from the hold. The plaintiff,:recovered upon thtdheory that ?is hljUries were ,caused by the carelessnesS' of a. fellow winchman. who had the management steam winch. by Which the was being raised from the hold, -and that' the·defenclsnli.wasnegligeht in that the winchman was incompetent for his place. Error is assigned because the trial judge refused to direct the jury to find a verdict tor the defendant, because he refused to give certain specific instructions to the jury, requested bl