Lightner v. Kimball

15 F. Cas. 518 | U.S. Circuit Court for the District of Massachusetts | 1868

LOWELL, District Judge.

The plaintiff contends that the transit company are the trustees or lessees of the cars, running them, or ordering them to be run, and having a special property therein which cannot be divested, even by the several railroad corporations which furnish them, until the expiration of the contract If this be the proper construction of the contract, it may be true that the transit company are liable as infringers, but it does not follow that their agent for making con-n-acts for transportation would be liable. It is a general rule that in actions of tort all the wrong-doers may be sued jointly or severally, and one cannot set up that he did the wrong by the command of another. Even this rule is not absolutely and universally true. A refusal by a servant to whom his master has intrusted goods, to deliver them to a stranger without the master’s order, has been held not sufficient evidence of a conversion by the servant: Alexander v. Southey, 5 Barn. & Ald. 247; Mount v. Derick, 5 Hill, 455. So when the gist of the action is a breach of contract, although me form be tort, the defendant is entitled to the benefit of the same defenses that he would have had in the other form of action; and if he be a mere servant, he will not be liable, unless ne can be held as a party, to the contract: Williams v. Cranston, 2 Starkie, 82; Cavenagh v. Such, 1 Price, 328. So a mere bailee for a particular purpose, whose custody begins and ends without notice of any defect of title, is sometimes exempted from suit: Greenway v. Fisher, 1 Car. & P. 190. But with comparatively few and unimportant exceptions, an agent or servant is equally liable with his master or principal to actions of trespass, trover, and even case for wrongs done to the property of a third person. See Perkins v. Smith, 1 Wils. 328; Stephens v. Elwall, 4 Maule & S. 259; Wilson v. Anderton, 1 Barn. & Adol. 450; Catterall v. Kenyon, 3 Q. B. 310; Wilson v. Peto, 6 Moore, 47.

It is said by an eminent judge that where the master has a color of right the servant is not bound to examine the justice of his title, but that the title must be litigated with the master: Berry v. Vantries, 12 Serg. & R. 92, citing Mires v. Solebay, 2 Mod. 242. There is much to be said in favor of this proposition as a matter of reasoning, but I have not found many cases which support it.

Granting, for the purposes of this argument, that every person who intermeddles with a patentee’s property, that.is, with his exclusive right to use his invention, is liable to .an action at law for damages, this case does not show that the defendant does so inter-meddle. He neither makes, uses, nor sells the invention, but is a mere stranger to the infringement, for it is agreed that he has no power or control over the matter. He is the agent of the transit company for making contracts for freight, but he does not appear to have any thing more to do with the use of the axle boxes than the several shippers who contract with him. If all merchants who ship goods by these cars, should refuse to do so until the axle boxes were changed or licensed, it might be a very good thing for the plaintiff, but they are under no obligation to do so. Nor is the defendant bound to know what axle boxes his principals use, or to refuse to be their freight agent until they obtain a license to use them. His defence is not that he is the servant of the transit company in doing the wrong, but that he is a stranger to the wrong done. If the servant were liable for acts of the master, instead of the reverse, there might be some ground for holding this defendant responsible for the use of the axle boxes by his principals; but the case finds that he has neither the property, the custody, nor the control of the cars in which this contrivance is used, that he can neither command the use nor the discontinuance of it, and that his duties have relation to an entirely distinct subject-matter. If the plaintiff were the owner of these axle boxes, which is a supposition more favorable to him than the fact, it is plain that he could maintain neither trespass nor any other action concerning them against the defendant: and that a demand on the defendant would be no evidence of a conversion, because he is not in a situation either to yield to or refuse such a demand.

The case of Lightner v. Brooks [Case No. 8,344], decided by the presiding judge of this court in 1SG4, is much in point. There the present plaintiff sued a director of a railroad company; and the court held that in the absence of evidence that the defendant had used or directed the use of the invention, he was not liable. Whether the general agent or superintendent of the company might be sued was not decided. Here it is not only shown that the defendant did not command the use of the invention by the transit company, but that he had no authority so to do. The fact that he is called a general manager is unimportant, because the agreed facts show what his powers were, and that he was not a manager in respect to the infringement. I do not find it necessary to decide whether the transit company or only the several railroad companies would be liable; nor whether in equity, where the controversy is expected to be settled in one suit, and between the parties really claiming adverse rights, a servant is ever a proper party; nor, indeed, what the precise limits are to the right to sue at law, but only that the facts here do not show that this defendant has infringed the plaintiff’s exclusive rights. Judgment for the defendant.

[The infringement of the same patent was the subject of the action in Case No. 8,344.]