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another agent of defendant, they will find for plaintiff, and assess his damages as shown by the testimony in the case. The law presumes that the plaintiff was damaged by the publication of a libel, and the law further presumes that the transmission by defendant, under the circumstances as shown by the testimony, of such words as were contained in the message in question, was negligent, or wanting in good faith, or a careless indifference to the rights of plaintiff; and if the message on its face is clearly susceptible of a libelous meaning, the jury may, in addition to such damages as will compensate the plaintiff for the injury, if any, done him, award other damagesexemplary or punitive damages-for the injury, if any, sustained by plaintiff; and in fixing the amount they may take into consideration the financial condition of the defendant."

And this substantially includes all the instructions the jury received. Analyzing the above, we find the following propositions:

(1) The defendant is liable if its agents transmitted the telegram in question, and the jury will assess damages shown by the testimony in the case.

(2) The law presumes (a) that the plaintiff was damaged by the publication of a libel; (b) that the transmission by defendant, under the circumstances as shown by the testimony, of such words as were contained in the message in question, was negligent, or wanting in good faith, or a careless indifference to the rights of plaintiff.

(3) If the message, on its face, is clearly susceptible of a libelous meaning, the jury will, in addition to such damages as will compensate the plaintiff for the injury, if any, done him, award other damages, exemplary or punitive, for the injury, if any, sustained; and in fixing the amount they may take into consideration the financial condition of the defendant.

On this writ it is contended that the last proposition in relation to awarding punitive damages is erroneous.

In Philadelphia, Wilmington, etc., Ry. Co. v. Quigley, 21 How. 213, 16 L. Ed. 73, which was an action for libel, the trial court charged the jury as follows:

"(2) And if the jury find for the plaintiff under the first instruction they are not restricted, in giving damages, to the actual positive injury sustained by the plaintiff, but may give such exemplary damages, if any, as, in their opinion, are called for and justified, in view of all the circumstances in this case, to render reparation to plaintiff, and act as an adequate punishment to the defendant."

In regard to this charge, which seems to be identical in meaning with the instruction herein complained of, the Supreme Court said:

"The second instruction contains the same error, and is objectionable for the additional reason that the rule of damages is not accurately stated to the jury. In Day v. Woodworth, 13 How. 371, 14 L. Ed. 181, this court recognized the power of a jury in certain actions of tort to assess against the tort feasor punitive or exemplary damages. Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations. Nothing of this kind can be imputed to these defendants.”

This decision of the Supreme Court is quoted approvingly in Milwaukee, etc., Ry. Co. v. Arms, 91 U. S. 493, 23 L. Ed. 374. The court remarked:

"Although this rule was announced in an action for libel, it is equally applicable to suits for personal injuries received through the negligence of others. Redress commensurate to such injuries should be afforded. In ascertaining its extent the jury may consider all the facts which relate to the wrongful act of the defendant, and its consequences to the plaintiff; but they are not at liberty to go farther, unless it was done willfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. In that case the jury are authorized, for the sake of public example, to give such additional damages as the circumstances require. The tort is aggravated by the evil motive, and on this rests the rule of exemplary damages. It is insisted, however, that where there is gross negligence' the jury can properly give exemplary damages. There are many cases to this effect. The difficulty is that they do not define the term with any accuracy; and, if it be made the criterion by which to determine the liability of the carrier beyond the limit of indemnity, it would seem that a precise meaning should be given to it. * * 'Gross negligence' is a relative term. It is doubtless to be understood as meaning a greater want of care than is implied by the term 'ordinary negligence.' But, after all, it means the absence of the care that was necessary under the circumstances. In this sense the collision in controversy was the result of gross negligence, because the employés of the company did not use the care that was required to avoid the accident. But the absence of this care, whether called gross or ordinary negligence, did not authorize the jury to visit the company with damages beyond the limit of compensation for the injury actually inflicted. To do this there must have been some willful misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Nothing of this kind can be imputed to the persons in charge of the train; and the court therefore misdirected the jury."

And see Western Union Telegraph Company v. Eyser, 91 U. S. 495, 23 L. Ed. 377.

In Lake Shore, etc., Ry. Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261, 37 L. Ed. 97, the whole subject of compensatory and punitive damages in cases of tort is exhaustively considered, and we quote short extracts applicable to the case in hand:

*

"Exemplary or punitive damages, being awarded, not by way of compensation to the sufferer, but by way of punishment of the offender, and as a warning to others, can only be awarded against one who has participated in the offense. A principal, therefore, though, of course, liable to make compensation for injuries done by his agent within the scope of his employment, cannot be held liable for exemplary or punitive damages merely by reason of wanton, oppressive, or malicious intent on the part of the agent. Though the principal is liable to make compensation for a libel published or a malicious prosecution instituted by his agent, he is not liable to be punished by exemplary damages for an intent in which he did not participate. In Detroit Post v. McArthur [16 Mich. 447], in Eviston v. Cramer [57 Wis. 570, 15 N. W. 760], and in Haines v. Schultz [50 N. J. Law, 481, 14 Atl. 488], above cited, it was held that the publisher of a newspaper, when sued for a libel published therein by one of his reporters without his knowledge was liable for compensatory damages only, and not for punitive damages, unless he approved or ratified the publication; and in Haines v. Schultz the Supreme Court of New Jersey said of punitive damages: "The right to award them rests primarily upon the single ground: wrongful motive.' 'It is the wrongful personal intention to injure that calls forth the penalty. To this wrongful intent knowledge is an essential prerequisite.' 'Absence of all proof bearing on the essential question, to wit, defendant's motive, cannot be permitted to take the place of evidence, without leading to a most dangerous extension of

the doctrine respondeat superior.' 50 N. J. Law, 484, 486, 14 Atl. 488. No doubt a corporation, like a natural person, may be held liable in exemplary or punitive damages for the act of an agent within the scope of his employment, provided the criminal intent necessary to warrant the imposition of such damages is brought home to the corporation."

As this case shows no evil motive nor malice beyond that which the law infers from the wrongful act, nor that the wrongful act was conceived by the telegraph company or its agents in the spirit of mischief or criminal indifference to civil obligations, we are clear that the telegraph company is not liable in punitive damages.

On the trial, and over the objections of the telegraph company, the court admitted evidence showing the great corporate wealth of the defendant, evidently offered with a view of obtaining enhanced damages. As there was no evidence in the case warranting the jury to award more than compensatory damages, the evidence in question was improperly admitted. See Sedgwick on Damages, § 385, and Washington Gaslight Co. v. Lansden, 172 U. S. 534, 19 Sup. Ct. 296, 43 L. Ed. 543.

The judgment of the Circuit Court is reversed, and the case is remanded, with instructions to award a new trial.

PENN PHONOGRAPH CO. v. COLUMBIA PHONOGRAPH CO.

(Circuit Court of Appeals, Third Circuit. September 19, 1904.)

No. 54.

1. DISMISSAL-DISCRETION TO PERMIT-REVIEW.

Unless it clearly appears that some fundamental rule of a court of equity was violated, or that there was an abuse of legal discretion, a decree dismissing a cause on complainant's motion will not be reversed on appeal. Where no evidence had been taken, and no hearing had upon the merits, the fact alone that defendant may be subjected to another suit is not a ground for denying leave to dismiss.

Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.

Charles N. Butler, for appellant.

John Stokes Adams, for appellee.

Before ACHESON and GRAY, Circuit Judges, and KIRKPATRICK, District Judge.

ACHESON, Circuit Judge. This was a suit in equity brought on December 4, 1902, by the Columbia Phonograph Company against the Penn Phonograph Company and the National Phonograph Company to restrain the defendants from using, selling, or letting, or offering for sale or to let, within the states of Maryland and Delaware, or within the District of Columbia, certain patented articles, whereof the complainant claimed an exclusive license within said states and District, and for the recovery of profits and damages. At the time the subpoena issued, notice of a motion for a preliminary injunction, and an affidavit on behalf of the complainant in support of the motion, were filed. On

11. See Appeal and Error, vol. 3, Cent. Dig. § 3838.

December 16, 1902, affidavits on behalf of the Penn Phonograph Company in opposition to said motion, and also the answer under oath of that company, were filed. The other defendant, the National Phonograph Company, by direction of counsel, was not served with the subpœna, and did not appear in the cause. On December 16, 1902, the motion for a preliminary injunction was argued, and was denied. On April 6, 1903, the complainant filed its petition praying that the bill might stand dismissed. On June 9, 1903, this motion was argued, and the following proceeding was had, as appears by record entry, namely:

"And afterwards, to wit, on the 9th day of June, 1903, came the parties aforesaid, by their counsel aforesaid; and this cause being called for argument sur motion on behalf of complainant to dismiss bill, and having been argued by counsel for the respective parties, and the court being fully advised in the premises, it is ordered that the motion to dismiss bill be granted."

On June 23, 1903, the court made the following decree:

"This cause came on to be heard upon petition of the complainant, praying that its bill may stand dismissed out of this court, with costs to be taxed by the clerk of this court, and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed that the prayer of complainant's said petition be granted, and that the complainant's bill stand dismissed out of this court, with costs to be taxed by the clerk of this court." From this decree the defendant the Penn Phonograph Company has appealed.

From the foregoing recitals, it appears that the complainant below did not attempt to dismiss the bill of its own motion, as a matter of right, but sought the permission of the court to do so, and that the court granted the prayer of the complainant, and dismissed the bill, with costs to the defendant, after hearing the parties, and upon due consideration. Upon this appeal, then, the decree allowing the dismissal of the bill should not be reversed unless it clearly appears that there was a violation of some established rule prevailing in equity, or an abuse of the legal discretion of the court. In Pullman's Car Co. v. Central Transportation Co., 171 U. S. 138, 146, 18 Sup. Ct. 808, 811, 43 L. Ed. 108, the Supreme Court, after referring to decisions upon this subject, said:

"From these cases we gather that there must be some plain, legal prejudice to defendant, to authorize a denial of the motion to discontinue. Such prejudice must be other than the mere prospect of future litigation rendered possible by the discontinuance. If the defendants have acquired some rights which might be lost or rendered less efficient by the discontinuance, then the court, in the exercise of a sound discretion, may deny the application. Stevens v. The Railroads [C. C.] 4 Fed. 97, 105. Unless there is an obvious violation of a fundamental rule of a court of equity, or an abuse of the discretion of the court, the decision of a motion for leave to discontinue will not be reviewed here."

We are not able to see that the court below violated any rule of equity practice, or abused its legal discretion, in making the decree here complained of. No testimony had been taken in the case, and there had been no hearing or decree upon the merits. The hearing of the motion for a preliminary injunction upon opposing ex parte affidavits and the denial of the motion did not bar the dismissal of the bill

by permission of the court in the exercise of its sound discretion. Nor was leave to dismiss precluded because the defendant was called on to answer the bill under oath, and did so. The appellant, we think, was deprived of no substantial right by the dismissal. We cannot agree that future litigation thus made possible amounted to legal prejudice. The decree of the Circuit Court is affirmed.

HIGGIN MFG. CO. v. MURDOCK.

(Circuit Court of Appeals, Sixth Circuit. October 15, 1904.)

No. 1,286.

1. PATENTS-INVENTION-SHELL FOR WHEEL HUBS.

The Higgin patent, No. 480,093, for a band-shell for wheel hubs, claims 1 and 2, which cover a shell having an annular groove for gripping the band and holding the shell in place, are void for want of utility in the device shown, and also for lack of patentable invention.

Appeal from the Circuit Court of the United States for the Southern District of Ohio.

This is a bill to restrain infringement of patent No. 480,093, to Henry Higgin, for certain improvements in band-shells for wheel hubs. The claims of the patent are as follows:

"(1) As an article of manufacture, a shell for hub-bands, having an inturned flange adapted to take over the point of the hub-band, and provided with an annular depression, substantially as and for the purpose specified.

"(2) As an article of manufacture, a shell for hub-bands, adapted to engage with the point of the hub-band, provided with an annular depression, and having a corrugated or knurled portion between its outer end and the annular depression, substantially as and for the purpose specified.

"(3) The combination, with a hub-band having an annular groove, of a shell adapted to engage with the point of the band, and provided with an annular depression adapted to take into the groove on the band, substantially as and for the purpose specified.

"(4) The combination, with the hub-band, B, having groove, b', and beadring, b, of the shell-band, C, having flange, c, and depression, c', and adapted to abut against the bead-ring of the band, substantially as and for the purpose specified."

The object of the inventor was to provide a self-securing band-shell.
Figures 1 and 2 of the patent are shown below:

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