Opinion of the Court.

244 U.S.

one or more experts and to make such disclosures to them as the preparation of the defence might require. Thereupon the District Court issued a preliminary injunction against disclosing any of the plaintiffs' alleged processes to experts or witnesses during the taking of proofs, but excepting counsel, with leave to move to dissolve the injunction if occasion to consult experts arose. Later a motion to dissolve was denied and the hearing was continued for a decision by the Appellate Court. 222 Fed. Rep. 340. The Circuit Court of Appeals reversed the decree. 224 Fed. Rep. 689. Before any further order was entered the writ of certiorari was granted by this court.

The case has been considered as presenting a conflict between a right of property and a right to make a full defence, and it is said that if the disclosure is forbidden to one who denies that there is a trade secret, the merits of his defence are adjudged against him before he has a chance to be heard or to prove his case. We approach the question somewhat differently. The word property as applied to trade-marks and trade secrets is an unanalyzed expression of certain secondary consequences of the primary fact that the law makes some rudimentary requirements of good faith. Whether the plaintiffs have any valuable secret or not the defendant knows the facts, whatever they are, through a special confidence that he accepted. The property may be denied but the confidence cannot be. Therefore the starting point for the present matter is not property or due process of law, but that the defendant stood in confidential relations with the plaintiffs, or one of them. These have given place to hostility, and the first thing to be made sure of is that the defendant shall not fraudulently abuse tne trust reposed in him. It is the usual incident of confidential relations. If there is any disadvantage in the fact that he knew the plaintiffs' secrets he must take the burden with the good.

The injunction asked by the plaintiffs forbade only the disclosure of processes claimed by them, including the disclosure to experts or witnesses produced during the taking of proofs-but excepting the defendant's counsel. Some broader and ambiguous words that crept into the decree, seemingly by mistake, may be taken as stricken out and left on one side. This injunction would not prevent the defendant from directing questions that should bring out whatever public facts were nearest to the alleged secrets. Indeed it is hard to see why it does not leave the plaintiffs' rights somewhat illusory. No very clear ground as yet has been shown for going further. But the judge who tries the case will know the secrets, and if in his opinion and discretion it should be advisable and necessary to take in others, nothing will prevent his doing so. It will be understood that if, in the opinion of the trial judge, it is or should become necessary to reveal the secrets to. others it will rest in the judge's discretion to determine whether, to whom, and under what precautions, the revelation should be made.

Decree reversed and case remanded for further proceedings in conformity with this opinion.

NEVADA-CALIFORNIA-OREGON

BURRUS.

RAILWAY v.

ERROR TO THE SUPREME COURT OF THE STATE OF NEVADA,

No. 237. Submitted April 30, 1917.--Decided May 21, 1917.

In an action against a carrier for breach of a contract to furnish an interstate train, the defendant objected when the tria! opened that no rate for such trains had been filed with the Interstate Commerce Commission and, while the trial was in progress, offered an amend

Opinion of the Court.

244 U. S.

ment to the answer, setting up this defense. Under the state practice the defense was not cognizable unless pleaded, and the amendment, not having been suggested until months after the commencement of the action while other defenses had been interposed, was rejected by the state trial court as coming too late, and this ruling was affirmed by the State Supreme Court as a proper exercise of the trial court's discretion. It being evident that the decision merely enforced the state practice with no purpose to evade the claim of federal right, Held, that a writ of error from this court must be dismissed. In the trial of an action against a carrier upon a contract for interstate transportation the plaintiff may be entitled to the presumption that the carrier filed such rates as were requisite to sustain the contract, the pleadings being silent on the subject.

Writ of error to review 38 Nevada, 156, dismissed.

THE case is stated in the opinion.

Mr. James Glynn for plaintiff in error.

Mr. Sardis Summerfield and Mr. John E. Raker for defendant in error.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an action for breach of a contract to furnish plaintiff, (defendant in error,) a special train to carry him from Reno, Nevada, to Doyle, California, where his son was ill, and to bring the two back from that place. The plaintiff got a judgment, and the only question before us is whether any rights of the defendant under the Act to Regulate Commerce have been infringed. The ground on which such an infraction is alleged is that the trial court, after the trial had been going on for more than a day, refused to allow the answer to be amended so as to set up that no tariff rate for special trains had been filed by the defendant and that therefore the contract was illegal. The defendant had mentioned the point at the beginning of the trial but this was the first time that it was presented

in proper form under the state practice, although some months had elapsed since the beginning of the suit and demurrers and other defences had been interposed without suggesting this one. The Supreme Court of the State declined to overrule the discretionary judgment of the court below. 38 Nevada, 156.

Upon the question whether a claim of immunity under a statute of the United States has been asserted in the proper manner under the state system of pleading and practice "the decision of the state court is binding upon this court, when it is clear, as it is in this case, that such decision is not rendered in a spirit of evasion for the purpose of defeating the claim of federal right." Atlantic Coast Line R. R. Co. v. Mims, 242 U. S. 532, 535. The most that could be said in this case was that the Supreme Court was influenced in its judgment by the fact that the railroad, after treating the plaintiff very badly, was trying to escape liability by an afterthought upon a debatable point of law-not at all by the fact that the law involved was federal. The plaintiff had tried the case relying upon the presumption which was sufficient as the pleadings stood. Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Rankin, 241 U. S. 319. The court reasonably might decline to put him to procuring other evidence from a distance, on the last day of the trial, upon a new issue presented after his evidence was in. We perceive no reason why this court should interfere with the practice of the State.

Writ of error dismissed.

THE CHIEF JUSTICE and MR. JUSTICE CLARKE dissent.

ROWLAND ET AL., RAILROAD COMMISSIONERS OF THE STATE OF ARKANSAS, v. BOYLE, ADMINISTRATOR OF BOYLE, AND THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.

No. 252.

Argued February 24, 25, 1916; restored to docket for reargument June 12, 1916; reargued May 1, 2, 1917.-Decided May 21, 1917.

Giving weight to the opinion of the District Judge who tried the case, this court upon reviewing the evidence agrees with his conclusion that, as applied to the appellee railroad company, the two-cent passenger rate fixed by the Arkansas legislature, and freight rates fixed by the Arkansas Railroad Commission, are confiscatory. An objection to evidence as hearsay is too late if not taken when the evidence was introduced.

While this cause was pending in the trial court, the appellee railroad company, for the purpose of allocating its expenses to intrastate and interstate freight and passenger traffic in Arkansas, caused minute and specific reports to be made by its employees of all facts that would throw light upon the problem in accordance with prescribed formulæ and introduced the results in evidence, exhibiting the worksheets and other data to the appellant Railroad Commissioners, who had opportunity to question them and call for further investigation. Held, that the returns were made by the employees in the course of their business and that an objection that the evidence was hearsay could not in justice be entertained. Held, further, that the two months of investigation afforded a basis for argument as to constant conditions.

The possible inaccuracy of apportioning general road maintenance expenses between freight and passenger service by engine-tonmiles considered and held not to affect the result of this case. Whether adoption of the low rates fixed by the State would be followed by increased intrastate traffic and revenue-Held, too remote and conjectural a inatter to disturb the conclusion.

222 Fed. Rep. 539, affirmed.