Sampson & Murdock Co. v. Seaver-Radford Co.

134 F. 890 | U.S. Circuit Court for the District of Massachusetts | 1905

HALE, District Judge

(after stating the case). This cause has. already been before the court upon the question of preliminary injunction. 129 Fed. 761. After action had been taken on that question, the case came before us upon bill, answer and replication, and, under the practice of the court in such cases, was referred to John G. Stetson, as master, to hear the evidence, find the facts, and report to the court his findings of fact, his conclusions of law, and such portions of the evidence as either party might request, or as he might deem useful for the court. The master has fully heard the parties, and has filed his report, which clearly presents the whole matter for our consideration. The leading and vital contention of the complainant is that the master made an error in ruling that “one who is compiling a general directory of a city has the right, after making his own canvass, to take a part of the names and addresses contained in another general directory, go to the original sources of information, ascertain' how far the existing facts concur with the statements of the first directory, and then to print and publish the result as his own; abandoning what is not found, and changing what his investigation shows should be changed, and printing, without change, what he has, by means of his own investigation, found to be correct.” In our former decision we found it necessary to refer to this subject, and to discuss it briefly. We stated the leading English authorities, and the cases presenting the conclusions of the federal courts of this country. We referred to the late cases: The Thompson Co. v. American Lawbook Company, 122 Fed. 922, 59 C. C. A. 148, 62 L. R. A. 607, and Dun v. International Mercantile Agency (C. C.) 127 Fed. 173. We then said:

“It seems to us that there is strong reason for holding that the publisher of a new directory has a right to take an old directory, and be guided by it to original sources of information, and that if, so guided, he goes to those sources of information and obtains facts, he may publish those facts, even though they consist of names and addresses which are identical with those published by the old directory. But upon this motion for a temporary injunction it is not necessary nor fitting for the court to pass upon this question.”

As the case now comes before the court, it is necessary to pass upon the question. Wre see no reason for coming to a different conclusion from that suggested in our former opinion. The American cases which we have just cited contain the latest expression of the federal courts upon the subject, and must control our action. The learned counsel for the complainant has presented a very able argument, insisting that the court should not allow the compiler of a directory to verify his own work by a former directory; that he should not be permitted to go to the original sources pointed out by the former directory, and, after verifying the statement of the former directory, then to publish the names and addresses, if they are identical with those published in a former directory. But the action which we indicated in our former opinion amounts to something more than mere verification. For example, let us suppose that in July a publisher is obtaining information upon which he proposes to publish a directory. He takes an old directory which had been compiled the preceding January. In that directory it appears that John Smith was in January a lawyer at No. 1 Tremont street. With the information contained in the January directory,, the compiler of the July directory goes to No. 1 Tremont street on July 1st, and finds that John Smith is a lawyer; that he has at that date an office at No. 1 Tremont street. The directory maker has a right to publish this information in his July directory. He cannot be precluded from so publishing it by the fact that the maker of the January directory has stated that the same'facts existed in the preceding January. The maker of the January directory may ■or may not have stated the truth as to John Smith at that time; but the compiler of the July directory may, in his directory, state the1 facts as they exist on July 1st relating to John Smith, whether those same facts existed, or not, the previous January, and whether they were stated, or not, in the January directory. The compiler of the July directory is not merely verifying and quoting. He is obtaining facts from original sources, using the old directory only to guide him to these sources. Facts so obtained he may publish in his •compilation. He cannot be prevented from such publication by the fact that the same things were true in January, and were stated by a former compiler.

In reference to the exceptions raised by the defendant, we have already considered the subject of the first exception. In reference to the second exception, we sustain the findings of the master.

We overrule the exceptions of both parties to the report of the master, and confirm his findings of fact and conclusions of law.

The learned counsel for complainant requests that the court decree a general injunction, with liberty for the defendant to have the injunction removed when he shall have expunged certain offending matter. He bases this request upon the decree in Social Register Association v. Murphy (C. C.) 128 Fed. 116; but in that case the ■court found that, as to portions of the book at issue, certain material of the complainant and defendant were so blended that a separation was impracticable, and on this ground made the injunction general. We prefer to order a specific injunction in accordance with the details indicated in the findings of the master.

A decree may therefore be entered that there be:

First. An injunction against the defendant from using or selling or offering for sale any copy of its 1904 City Directory of Boston ■so long as it contains—

(1) In its list of office buildings, halls, etc., on page 173, the name and location, “McKinley Hall, 24 W. Concord St.”;

(2) In its general directory the names and information contained therewith set out in master’s findings 7, 8, 9, 10, 11, and 14;

. (3) In its general directory the names and the information referred to in master’s findings as not front-checked in the check books, and so not obtained by original canvass, and not blue-dotted, and so not obtained from original sources upon questions drawn, but which are not included in Master’s Schedule C; and

(4) In its business directory the fictitious names and locations, “Rogers Robert B., 312 Maverick,” on page 1969, and “Jones G. W. 1650 Dorchester ave.,” on page 2151, and the sixteen names and information in the form described in master’s findings 15 and 15a.

Second. That there be an accounting to the complainant for profits derived by the defendant from and by reason of its incorporating in its 1904 City Directory of Boston the names and information specified above in paragraphs 1, 2, 3 and 4, and from the manufacture and sale of said directory, in so far as such profits are attributable to such incorporating therein of said names and information.