Perhaps no decision has been more anxiously awaited by more people than that in Hamilton-Brown Shoe Co. v. The Wolf Bros. & Co., 36 Sup. Ct., and now that it has appeared, its inconclusiveness is probably as disappointing as that in any case ever thus awaited. This case was discussed by us under the title, Wolf Bros. & Co. v. Hamilton Brown Shoe Co., as reported in 206 Fed. 611, in 77 Cent. L. J. 305, also a majority decision. In this case it will be remembered that Wolf Bros. & Co., of Cincinnati, brought suit against the Hamilton-Brown Shoe Co., of St. Louis, for damages for infringing its trade-mark, "American Girl" as applied to shoes by selling a brand known as the "American Lady Shoe." considerably that it does not give us the precise reasons why it was necessary for affirmance for it to disagree with the lower court in the particular above stated. We infer from the brief dissent by the Chief Justice and Justice Van Devanter, that it was vital to affirmance that the infringement sued for should be held to have been of a strict trade-mark. This is a sound principle, but the Supreme Court finding a short cut to affirmance by disagreeing to the view of the Circuit Court of Appeals casts all of the great questions, crying for determination in a class of suits, where the law needs to be conclusively settled, to the limbo of delay. Possibly the court was right in doing this, because infringement of strict trade-mark and suits in unfair competition pertain more to the jurisdiction of state than federal courts. But this seems not well recognized by our supreme tribunal in the determination of federal law, because it harps upon the curious statement of a principle that "the true rule (of damages) is strictly analogous to that applied in patent law." Why our highest federal court should refer to a rule in strict statutory law, as a rule about. about patents is, and make that the criterion for the settlement of an action for a common law wrong, is somewhat amaz There appeared to us then an opportunity for the court both to lay down some definite rule to distinguish infringement of strict trade-mark from damages in unfair competition and the rule of recovery in the one sort of case and in the other. The Circuiting to us. If the saying were reversed, that Court of Appeals was far from making clear either of the above distinctions and our Supreme Court leaves us quite as greatly at sea as did the Circuit Court of Appeals. For example, the Circuit Court of Appeals awarded recovery to the plaintiff as in a case of unfair competition and the Supreme Court appears to sustain this recovery only because it disagreed with the former court about its being a case of unfair competition, but held there was infringement of a strict common law trademark. It matters little in the doctrine of the law, that the one court differed from the other in this particular, but it does matter is to say, the rule in patent cases is strictly analogous to that applied in trade-mark cases, the statement would be more comprehensible. This would mean that patent statutes are to be construed in their common law terms by reference to trade-mark law. But embarking on the theory of analogy to patent law, the opinion refers to Garretson v. Clark, 111 U. S. 120, and Westinghouse Co. v. Wagner Mfg. Co., 225 U. S. 604, 615, as showing what the rule in patent cases is. If ever one decision may be construed as overruling another, this latter case may be thought to overrule the former. At all events, the two cases do not do more than lay down the rule of burden of proof in patent cases and when it shifts. But the Supreme Court decision is particularly unsatisfactory to our minds in that it does not declare as a principle of law, that the violation of a trade-mark gives a right as matter of law to recovery either of profits made by an infringer or of damages caused by his infringement. The court says: "It is to be remembered that defendant does not stand as an innocent infringer. Not only do the findings of the Court of Appeals, supported by abundant evidence, show that the imitation of complainant's mark was fraudulent, but the profits included in the decree are confined to such as accrued to defendant through its persistence in the unlawful simulation in the face of the very plain notice of complainant's rights that is contained in its bill." The case then quotes from a state case which says not a word about fraudulent conduct in infringing a strict trade-mark and the rule is laid down there that in confusion of goods he who does this must lose the mass unless he can separate them. This is a good rule, but it needed in no way for its support a rule in a statutory action in patent law. Very rightly the court cites in support of the state case above alluded to, several other state cases "to the same effect." But, if it was necessary for affirmance to rule that using the name "The American Lady" is to use "a trade-mark in the strict sense of the term," then the line between trade-mark cases and those "non-trademark" remains very obscure. The court said: "We do not regard the words 'The American Girl' adopted and employed by complainant in connection with shoes of its manufacture as being a geographical or descriptive term. It does not signify that the shoes are manufactured in America or intended to be sold or used in America, nor does it indicate the quality or characteristics of the shoes. Indeed, it does not, in its primary signification, indicate shoes at all. It is a fanciful designation, arbitrarily selected by complainant's predecessors to designate shoes of their manufacture." Then are cited the "Lackawanna," "Columbia" mills, "Elgin" watch, "Genessee" salt, "Old Country" soap cases as not controlling and the opinion says: "If the mark here in controversy were 'American Shoes,' these cases would be quite in point." Yet we imagine that "Columbia" was as fanciful as "American Lady," and so as to "Elgin" and "Old Country," or as "Lackawanna," and that the proof of the way they were used showed them geographical or descriptive. Standing by themselves they might have been thought fanciful or arbitrary, and so thinking, it seems to us that the dissent saying that: "The term, The American Girl,' as applied to women's shoes, made and sold in America, is geographical and descriptive and not subject to exclusive appropriation as a trademark." The dissent draws the conclusion "that upon this record a recovery of the entire profits is not admissible.” But the question recurs what should have been recovered on this theory? In this case no damages whatever were proven, but all of the testimony was directed to the question of defendant's profits and this case may be considered as settling the question that profits are recoverable in infringement of trade-mark and also in unfair competition, but not all in the latter, that is to say, if simulation is after notice by proprietor. The report by the master in the case, Judge Henry H. Denison, is sustained, and while for a very large sum there seems some intimation, that as this was a case in strict trade-mark, it well might have been for a greater sum. This is the same master, whose report and findings were finally sustained by the Supreme Court in the noted case of Westinghouse Co. v. Wagner Mfg. Co., supra, which case we considered in 76 Cent. L. J. 39. NOTES OF IMPORTANT DECISIONS. CONVICTS-RIGHT OF ACTION AGAINST LESSEE FOR SERVICES RENDERED.-In Anderson v. Salant, 96 Atl. 425, the Supreme Court of Rhode Island goes into a tediously elaborate discussion of the status of a slave as meant by the Thirteenth Amendment and the Rhode Island Constitution, with the result of concluding that a convict's position so far as his right of contract and of inheritance and to his being a chattel of an owner, bears little or no analogy thereto. This being determined it is then considered whether he was so absolutely under the dominion of one to whom he is farmed out under statute providing therefor as to give him right of action for services rendered the State's lessee. By like reasoning, by which the court arrives at the conclusion that a convict was not to be deemed a slave, it reaches the result, that these statutes have been recognized for so many years, that there is a very strong presumption of their validity. . It is said: "The condition of slavery sought to be established is a 'synthetic slavery made up from the incidents inherent in the condition of being a convict lawfully under sentence and the fact that said convict was compelled to work pursuant to the contract made under the statute. The plaintiff's inability * * to dispose of his person and property and services is in no way due to the contract of which he complains, but is an incident of his condition as a convict. As we have seen, it is not claimed that to cause a prisoner to work for the State is a violation of the constitutional provision forbidding slavery, but that to cause him to work upon materials of another than the State, under a contract between such other person and the State, in the prison of the State, under the control of the State, the State receiving compensation for said work and the convict not receiving compensation therefor, results in the transformation of the labor which is imposed upon the convict as a part of his sentence, into that of a slave and constitutes a condition of slavery. If this contention is sound, it follows that while the State may compel the convict to work for the State upon the materials of the State in its workshops situated in the prison, the State must own the materials upon which the work is done or the convict cannot lawfully be compelled to work." We have used a lengthy extract to show how very fine spun is the contention ad vanced. It is not asserted that the convict's punishment is in any way more severe or in any regard added to by making him work for another than the State, and it seems to us that a lessee would be deemed pro hac vice an officer of the State and his anticipated profit to represent a definite salary. But independently of this hair splitting ratiocination, the constitutional provisions referred to can not be supposed to extend to statutes of duration long previous to their adoption. WORKMEN'S COMPENSATION ACT-RECOVERY OF EMPLOYEE IN INTERSTATE COMMERCE, ΝΟ NEGLIGENCE BEING CLAIMED.-In 82 Cent. L. J. 43, and 63, there was discussed the applicability of workmen's compensation acts under any circumstances to a case of injury suffered by an employee engaged in interstate commerce, the two cases therein referred to holding that the Federal Employers' Liability Act left the State law to operate in non-negligence cases. We indicated our dissent from their conclusion. In Winfield v. Erie R. Co., 96 Atl. 394, New Jersey Court of Errors appears to go even further than did the cases we considered. Thus, in the Winfield case there was writ of error to the trial court to review a finding by it that an employee was not killed in the course of an interstate employment and the Supreme Court held he was and set aside a judgment in favor of plaintiff. The Court of Errors and Appeals in reversing the Supreme Court, said: "We do not find it necessary to determine whether appellant's decedent came to his death while employed by the defendant in interstate commerce, as the Supreme Court held, or while employed in intrastate commerce, as was found by the Court of Common Pleas, but will assume for the purpose of deciding this appeal that the * * was conclusion of the Supreme Court * justified by the facts proved. The question then is whether the widow of an employee of a common carrier by railroad which is engaged in interstate commerce, who comes to his death while he is employed by such carrier in such commerce, must in all cases bring her action to recover compensation under the Federal Employers' Liability Act. This question, we think, must be answered in the negative. *** It cannot be that when the federal act affords no remedy, the widow cannot enforce a remedy which is given her by a State statute." But it can be if the federal statute covers the whole question of liability. The court further says that: "What the appellant in the present proceeding seeks to enforce against the defendant company is not a liability arising out of its negligence, but a contractual obligation created by Section 2 of our Workmen's Compensation Act with the consent of both employer and employee and which exists although no negligence can be imputed to the employer. And this we consider she is entitled to do in the absence of any averment by her or any proof offered, or any admission made by defendant company showing that the death of her decedent resulted from defendant's negligence and thus created a liability against it under the federal eral statute." It seems a mere juggling of words to say there is not a liability but only a contractual obligation. If the contractual obligation takes in injury from tort by employer, it certainly is excluded by the federal act. And if it intended to cover the whole field of accident for which an employer in interstate commerce is liable, injury not thus arising would also be excluded. As we urged in 82 Cent. L. J. 43, the real question is whether the federal act intended that no other burden should be put upon a carrier in interstate commerce, and, therefore, on commerce itself, than was imposed for injury occurring as in that act stated. It could have said the carrier should not be liable at all, but employees should take all risks. Did it not impliedly say they did this when the carrier was not negligent at all? The act gives a remedy to a class. Can the class have a remedy in other law? FALSE STATEMENT IN PACKAGE REGARDING CURATIVE EFFECTS.-The term "misbranded" is by statute made to embrace, as to drugs shipped in interstate commerce, a case where any "package or label shall bear or contain any statement, design or device regarding the curative or therapeutic effect of such article or any of the ingredients or substances contained therein, which is false and fraudu lent." This statute was held to embrace circulars in packages containing drugs, where false and fraudulent, and as so construed it came within the power of Congress under the commerce clause. Seven Cases v. United States, 36 Sup. Ct. 190. This ruling is predicated upon the principle that there was no encroachment upon the reserved power of the states. The court said: "The objection is not to be distinguished in substance from that which was overruled in sustaining the White Slave Act. Hoke v. United States, 227 U. S. 308. There, after stating that "if the facility of interstate transportation can be denied in the case of lotteries, obscene literature, diseased cattle and persons and impure food and drugs, the like facility could be taken away from 'the systematic enticement of and the enslavement in prostitution and debauchery of women,' the court conIcluded with the reassertion of the simple principle that Congress is not to be denied the exercise of its constitutional authority over interstate commerce and its power to adopt not only means necessary but convenient to its exercise, because these means may have the quality of police regulations." It is hard to see how it is necessary or even convenient to the exercise of the right to exclude misbranded drugs from interstate commerce, to declare further that no circulars shall accompany them of an untruthful nature, nor is it very apparent that if such circulars are of the nature of misbranding, that they should be both false and fraudulent, that is to say, intentionally false. For them to be false should be misbranding whether done innocently or fraudulently. This goes to show that the falling under police power is the gist of the statute and not that police power incidentally comes in. But it is also held that the inclusion of the word "fraudulent" was, in effect necessary to avoid the guaranty by the Fifth Amendment. It is said: "Congress deliberately excluded the field where there are honest differences of opinion between schools and practitioners. It was plainly to leave no doubt upon this point that the words 'false and fraudulent' were used. This phrase must be taken with its accepted. legal meaning and thus it must be found that the statement contained in the package was put there to accompany the goods with actual intent to deceive." Here we get back to what would ordinarily be "the reserved power of the states," and how anyone could see that it only incidentally comes in, and is not the primary purpose of the statute, we do not understand. There is certainly very great temptation in Congress to help out police power, in every way it is more able to do this than states are, but the sustaining of the granting of such aid as lawful very greatly resembles dialectical gymnastics. SOME OBSERVATIONS ON THE APPLICATION OF THE DOCTRINE OF THE LAST CLEAR CHANCE. The application by the various courts of the doctrine of the last clear chance, to the particular facts presented by each case, has caused some confusion as to the real mean of the plaintiff which in any degree contributed to an accident was the proximate cause thereof, and constituted contributory negligence which barred recovery. It was further held in some cases that plaintiff must not only prove the negligence of the defendant, but must also affirmatively disprove any negligence on his part. Carried to such extremes, the doctrine became the ing of this principle. As a consequence it subject of severe condemnation as a harsh is difficult to reconcile all of the cases on the subject by the application of any fixed rule. No consideration of this doctrine can be rightly entered into without an examination of the rule of contributory negligence. The rule that contributory negligence will defeat recovery in negligence cases appears to have been first distinctly announced in the case of Butterfield v. Forrester,' though not then as a novel doctrine. There the defendant, for the purpose of making some repairs to his house, which was close by the roadside, had put up a pole across this part of the road, a free passage being left by another branch or street in the same direction. The plaintiff, about candle light, but while there was yet light enough left to discern the obstruction at 100 yards distance, while riding very rapidly, rode against the pole and was thrown and badly hurt. The Court directed a jury, that "if a person riding with reasonable and ordinary care could have seen and avoided the obstruction, and if they were satisfied that the plaintiff was riding along the street extremely hard, and without ordinary care, they should find at verdict for the defendant." This charge was sustained on appeal.2 This doctrine, thus first enunciated in a most reasonable form was soon carried beyond what could ever have been contemplated by the original case. At length some courts held that any negligence on the part (1) Butterfield v. Forrester, 11 East 60, 10 Revised Rep. 433. (2) For definitions of contributory negligence see 29 Cyc, 505; 1 Sherman & Redf, Neg. (6th ed.) sec. 61. 1 Thomp. Neg. 2d ed. sec. 169. and unjust rule, as it left the plaintiff to bear all the damages, although he may have been but remotely, and consequently, but slightly in fault. The existence of these conditions, and especially in cases where human life was concerned, created a need for a more just and humane rule, and accounts for the prompt and general approval given to the doctrine now generally known as the "Last Clear Chance", or as it is sometimes referred to as the rule of antecedent and subsequent negligence. The case of Davies v. Mann3 is generally considered to be the case from which the above doctrine originated. In that case the owner of a donkey negligently turned it out upon the highway with its feet fettered, and the animal was killed by a party who was carelessly driving along the highway and ran into it. A recovery was allowed notwithstanding the negligence of the owner. In that case Lord Abinger, C. B., said: "The defendant has not denied that the ass was lawfully in the highway, and therefore we must asume it to have been lawfully there. But even were it otherwise, it would have made no difference for as the defendant might, by proper care have avoided injuring the animal, and did not, he is liable for the consequences of his negligence though the animal might have been improperly there." And in the same case, Parke, B. says; "Although the ass may have been. wrongfully there, still the defendant was bound to go along the road at such a pace (3) Davies v. Mann, 10 Mees & W. 546, 12 L. J. Exch. N. S.; 10, 6 Jur. 954, 19 Eng. Rul. Cas. 190. |