261 F. 792 | 2d Cir. | 1919
Pursuit by plaintiff of these defendants began with an action at law, in which summons was served on or about January 4, 1911. That action was tried before a jury, and resulted in a verdict, which found in effect that defendants, or one of them, had infringed plaintiff’s patent by using eight electric railway switches, as to each one of which the jury awarded plaintiff $68.93.
A writ of error was taken to this judgment, and we reviewed the case in 194 Fed. 963, 114 C. C. A. 599. This bill in equity was brought to recover such damages and profits as plaintiff might be entitled to by reason of (1) the use of said eight infringing switches after January 4, 1911; and (2) whatever similar recoveries the plaintiff might
“That as to the eight devices as to which a recovery has been had at law the complainant shall recover nothing further as profits or damages prior to Jan-' uary 5, 1911.”
From the beginning one of the issues in this cause has been the relation of the Transit Development Company to the operation of these switches, and we held on the previous appeal that “the extent of the infringement will be a subject for inquiry on the accounting.” On this point the master found as a fact that the Development Company—
“owns no lines of railway and no cars to be operated thereon, and neither owns nor operates nor otherwise uses any switches such as are complained of in this case.”
This finding was not excepted to, and is not assigned for error.
Another issue appearing in the pleadings is whether plaintiff marked its switch as patented, as prescribed by statute, or gave notice to defendants of their alleged infringement. On this point the master made a finding unfavorable to the plaintiff, which was excepted to on the ground that—
“He should have held that each of said switches was duly marked, notice was duly given, and that defendants continued their infringing acts after such notice.”
This exception the court sustained, but after examining the record we hold that plaintiff is not shown ever to have marked its switches, and that it gave no notice of infringement to the defendants, other than by bringing the action at law aforesaid on January 4, 1911.
The last of the offending devices ceased to be used (so far as this record shows) in April, 1912. The method of fixing damages pursued with partial success in the court below was as follows: Plaintiff introduced the record in the action at law (194 Fed. 963, 114 C. C. A. 599), arid demanded $68.93 damages for every switch proved to have been used by any defendant because that measure of damage had once been awarded by the jury, and for the same reason the same sum was demanded, not only for every infringing switch not shown ,to the jury, but for each of the previously proven switches whose use continued after January 4, 1911.
An assessment of damages is not the fixing of a penalty, to be inflicted every time the same defendant injures the same plaintiff. It is a valuation of injñry, which, while often the same in kind, can never be assumed to be the same in degree. The use of the record here by plaintiff does not rest upon reason, while on authority it is opposed to Ecaubert v. Appleton, 67 Fed. 917, 15 C. C. A. 73; approved in Cheatham, etc., Co. v. Brooklyn, etc., Co., 238 Fed. 172, 151 C. C. A. 248, and to the reasoning in Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195. There was, therefore, no evidence justifying an award of damages to plaintiff.
The theory of profit computation advanced is that every infringing switch dispensed wholly with the services of a switchman, who had previously been employed for every day in the year and 24 hours per day; but it is plainly proven that at few points where any infringing switch was used had a switchmen ever been employed, and that at no point had a switchman’s services been utilized all day and all night.
These errors always rendered any accurate computation of profits impossible, and when it is observed that under the interlocutory decree plaintiff’s right to profits on the eight switches of the action at láw began with January 4, 1911, that there were not over two infringing switches of the Nassau Company which supplanted a watchman even during the “rush hours,” and that all right to either profits or damages as against the Transit Development Company (in respect of switches not shown in the action at law) was swept away by the master’s unopposed finding, the possible residuum of recovery in this case becomes trivial in comparison with the costs of this protracted litigation. Under such circumstances, we are not disposed to interfere with the disposition of profits made by the court below.
Contempt is not to be regarded as a source of revenue or additional damages to a complainant. A civil contempt, such as this, may result in reimbursing complainant, not fo.r infringements as to which he may seek damages and profits before a master, but for losses and expenses to which he is subjected by the offender’s contumacious conduct. This record shows no loss of any kind to plaintiffs by reason of defendant’s delay in disconnecting the aforesaid apparatus, and its expenses were reasonably covered by the $150. We find no error in the result now complained of.
The decree under consideration is modified on the appeal of the defendants, and the cause remanded, with directions to enter a decree for nominal damages only. The defendant will recover one bill of costs in this court. The adjustment of costs between the parties on the entry of decree for nominal damages is a matter remitted to the discretion of the District Court.