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to its counsel, and he, after examining them, advised plaintiff's prosecution. Held, that plaintiff's acquittal and proof of such facts were insutticient to establish a cause of action for malicious prosecution; such evidence being insufficient to establish either malice or want of probable
In Error to the Circuit Court of the United States for the Western District of Pennsylvania.
W. K. Jennings, for plaintiffs in error.
Before DALLAS and GRAY, Circuit Judges, and KIRKPATRICK, District Judge.
DALLAS, Circuit Judge. This writ of error has brought up the record in an action for malicious prosecution. The plaintiffs in error, who were defendants below, requested the learned trial judge to give binding instructions in their favor, and the refusal of that request is here assigned for error.
A jury should never be allowed to render a verdict unsupported by evidence, and the question which we deem to be controlling in this case is whether there was any evidence from which lack of probable cause for the prosecution complained of, and the existence of malice in its institution, could be rationally deduced. The record discloses no such evidence, and, indeed, the pertinent facts are not disputed. Mr. Berger was a local superintendent of the Metropolitan Insurance Company. The plaintiff below was also employed by that company, in a clerical capacity. Mr. Berger's attention was called to a transaction which led him to apprehend that she had tampered with accounts in her charge. He sought the assistance of another superintendent of the company, Mr. Thornton, and they, upon examining the books, found, as they supposed, a considerable deficit. Mr. Berger notified the company, and it sent a supervising inspector, Mr. Gaslein, who also made an examination, and confirmed the result which had been arrived at by Mr. Berger and Mr. Thornton. Thereupon, by direction of the insurance company, Mr. Berger and Mr. Gaslein submitted the books and papers to its counsel, and he, after examining them, advised the prosecution. Surely such conduct could not warrant an inference either of malice or of want of probable cause; and, on the other hand, the fact that the defendant sought, obtained, and acted upon the advice of counsel, who for a long time had been employed by the company, raised a strong presumption-practically a conclusive one—that there was probable cause, and that the prosecution was initiated in good faith and without malice.
The defendant in error was mistakenly charged with a serious offense, and, no doubt, she greatly suffered in consequence; but she utterly failed to make out a case of malicious prosecution, and therefore the jury should have been told that its verdict must be for the defendants.
The judgment of the Circuit Court is reversed, with costs.
NOTE BY THE COURT. This judgment had been determined upon prior to the death of the late Judge KIRKPATRICK, and was concurred in by him.
CHICAGO TERMINAL TRANSFER R. CO. v. BOMBERGER.
1. ERROR-ASSIGNMENTS OF ERROR.
An assignment of error that the verdict is contrary to law is too general
to be considered. 2. SAME-SETTING OUT WBIT FOR DELAY-DAMAGES ON AFFIRMANCE.
Where it is apparent, from the fact that the record presents no question for decision by the appellate court, that a writ of error was sued out for delay, the Circuit Court of Appeals will award damages on affirm
ance, as authorized by rule 28 (90 Fed. cxix, 31 C. C. A. cxix). In Error to the Circuit Court of the United States for the District of Indiana.
Jesse B. Barton and John B. Peterson, for plaintiff in error.
Before JENKINS and GROSSCUP, Circuit Judges, and BUNN, District Judge.
PER CURIAM. This is a writ of error to review a judgment in an action for personal injuries. The errors assigned are nine in number, The 1st, 2d, 3d, 5th, 6th, 7th, 8th, and 9th assignments challenge the action of the court below upon several grounds, and are dependent upon the evidence submitted at the trial, but that evidence is not preserved by any bill of exception, and therefore they cannot be considered. The fourth assignment, that the verdict of the jury is contrary to law, is altogether too general, and nothing preserved in the record enables us to consider it.
The writ of error, as we cannot but think, was sued out for purposes of delay. It is not otherwise conceivable that the writ of error should be sued out, when the plaintiff in error must have known that no question could, upon the record, be presented to the court for its decision. We are not disposed to encourage frivolous appeals. It is a case calling for the application of the second paragraph of rule 28 (90 Fed. cxix, 31 C. C. A. cxix), and the judgment is affirmed, with 10 per cent. damages upon the amount of the judgment, in addition to interest. Affirmed.
12. See Costs, vol. 13, Cent. Dig. 88 983, 986, 987.
UNITED STATES V. AH CHUNG.
In proceedings for the deportation of a Chinaman, the fact that he was permitted to live in the United States for 19 years without molestation was insufficient to raise a presumption that his arrival antedated the date on which the exclusion act (Act May 6, 1882, c. 126, 22 Stat. 58, as amended by Act July 5, 1884, c. 220, 23 Stat. 115 [U. S. Comp. St. 1901, p. 1305]), went into effect, he never having registered as a laborer or mer
chant as required by law. Appeal from the District Court of the United States for the Northern Division of the District of Washington.
Jesse A. Frye, U. S. Atty., for appellant.
Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.
ROSS, Circuit Judge. Accepting the appellee's testimony as true, he came to the United States from China prior to Chinese Exclusion Act May 6, 1882, c. 126, 22 Stat. 58, and, of course, prior to the similar act of 1884 (Act July 5, 1884, c. 220, 23 Stat. 115 (U. S. Comp. St. 1901, p. 1305]), and subsequent acts of Congress upon the same subject, although he did not give the exact date of his arrival at San Francisco. He was then 12 years old, and at once engaged in manual labor. He claims to have since become a merchant. He has remained in this country continuously, but never registered either as a laborer or as a merchant under the laws of Congress in respect to that matter. The court below held (reversing the action of the cominissioner) that, the appellee "having been permitted to live in this country for nineteen years without molestation, there is a reasonable presumption that his arrival antedated the exclusion act, or at least the date on which it went into effect, rather than that his entrance was clandestine.” In cases of this character there is no such presumption. United States v. Wong Dep Ken (D. C.) 57 Fed. 206,United States v. Lung Hong (D. C.) 105 Fed. 188; United States. v. Chun Hoy, 111 Fed. 899, 50 C. C. A. 57; United States v. Chu Chee, 93 Fed. 797, 35 C. C. A. 613; United States v. Yong Yew (D. C.) 83 Fed.
832; Li Sing v. United States, 180 U. S. 486, 21 Sup. Ct. 449, 45 L. Ed. 634.
The judgment must be reversed, and the cause remanded to the court below, with directions to affirm the judgment of the commissioner directing the deportation of the appellee to China.
1. Citizenship of the Chinese, see notes to Gee Fook Sing v. U. 8., 1 C.. C. A. 212, and Lee Sing Far v. Same, 35 C. C. A. 332.
LOWRIE v. H. A. MELDRUM CO.
The Steel patent, No. 652,407, for a garment fastener, designed to hold down the skirt band and belt so as to give the waist a downward curve in front, and which, as described, consists of a combination of books to hold the band and belt, with a shank fitted to be attached to the fastening devices of a corset, was not anticipated, and discloses invention, but is not infringed by a device otherwise similar, but which is fastened to the fabric of the corset by means of a safety pin; such device being sub
stantially shown in the prior art. Appeal from the Circuit Court of the United States for the Western District of New York.
This cause comes here on appeal from a decree adjudicating the validity and infringement by defendant of patent No. 652,407, granted June 26, 1900, to Anna M. Steel for a garment fastener. For opinion below, see 124 Fed. 761.
Harry C. Kennedy and Horace Pettitt, for appellant.
Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.
TOWNSEND, Circuit Judge. The record shows that for some years prior to the date of the patent in suit a host of would-be inventors had been directing their efforts toward the production of a practicable device for firmly fastening garments together at the waist. The earlier devices were generally designed chiefly to support the lower garment. Later such devices were also adapted to depress alike the upper and lower garments so as to give the required shape. The patentee herein appears to have constructed a device superior to those which had preceded it, and one which has achieved great commercial success. It is "adapted for the purpose of holding down the front of the skirt and the belt of women's garments; it having for its objects to prevent the skirt from 'hiking,' and also to produce a downward curve or slope of the skirt band and belt toward the front.” It consists "essentially of a garment fastener composed of a shank provided with means for its attachment to the fastening devices of the corset, and provided at its upper end with hooks located in position to engage with the upper edge of the skirt band, and with hooks located above the plane of the first hooks, and adapted to engage with the upper edge of the belt."
The claims in suit are the following: "(1) A garment fastener provided with means for its attachment to the fastening devices of a corset, and with two outwardly and downwardly extending books, each in a different plane, the one being adapted to engage with the upper edge of the skirt band, and the other with the upper edge of the belt, substantially as described."
"(3) A garment fastener comprising a shank having means for its attachment to a corset, and provided with a row of outwardly and downwardly extending books, projecting from lateral extensions on said shank, and with a second
row of outwardly and downwardly extending hooks in a different plane from that of the first row, substantially as and for the purpose specified."
The elements of this combination were old. Shanks provided with means, etc., said means being specifically described as "a series of longitudinal slots or other suitable sockets for the purpose of adapting the shank to be attached to one of the usual fastening studs in corsets," were shown in prior patents to Towson and Carr & Wolf, and on reference to the latter patent a claim by this patentee for such means was rejected in the Patent Office. Hooks in different planes for engaging respectively the belt and shirt waist were shown and described in the Dunbar patent of 1899. And Sanders, in his patent of 1899, had shown and described a device to keep men's belts in place, which comprised a combination of elongated shank, and means capable of attachment to a woman's corset or corset clasp, with hooks in different places at the upper end of the shank, adapted to keep a skirt band and belt in position. But when, at the close of the nineteenth century, the decrees of fashion transformed the circular waist of nature, characteristic of that period, into the conventional downwardly curved slope in front, in the similitude of a girdle, or the pointed waist of the Elizabethan period, a new problem was presented to the designers of garment clasps. They must no longer fasten and support the garments at the waist line of nature, and in a natural position, They must now force the meeting edges of skirt band and belt, and incidentally of the shirt waist, down below the true waist, and "draw and hold the front of the skirt downward” by an attachment so firmly fastened as to be adapted to the anatomy of a woman having a prominent abdomen, and to prevent the skirt and belt from rising above it. The patentee herein met the exigencies of the situation by providing in compact form a combination of the old devices, but now adapted to grip with the corset stud, and to engage the meeting garments and hold them down in suitable relative positions. It appears that in so doing she exercised in a humble way, and to a limited extent, the faculty of invention. She certainly succeeded in producing a practical fastener, superior to all the devices of the prior art. We conclude that the claims in suit of her patent are valid, so far as they cover the precise device "substantially as described."
The defendant has attempted to meet the demands of the new fash. ion by providing a fastener which should be so within the disclosures of the prior art, and without the limitations of the patented fastener, as not to infringe. It has constructed a shank provided with the outwardly and downwardly extending hooks, in different planes, of the patent in suit. But it has not provided any means for attachment to the fastening devices or stud of the corset. Instead, it has equipped the lower end of the shank with an ordinary safety pin, for the purpose of fastening the device to the fabric of the corset, and adapted to engage only with such fabric. That this safety pin is not "a means for attachment to the fastening devices of a corset” is proved by the admission of complainant's witness Mrs. Holch, a dealer in such articles, that she has seen a great many of defendant's devices in use; that all of them which she has seen have been pinned to the fabric of the corset and skirts; that, while it would be possible to engage the