Case and Comment NOTES OF RECENT IMPORTANT, INTERESTING DECISIONS, INDEX TO ANNOTATION OF THE LAWYERS REPORTS ANNOTATED LEGAL NEWS NOTES AND FACETIE. VOL. 14. CASE AND COMMENT. Published Monthly By FEBRUARY, 1908. No. 9. but with all their employees, including those who may be engaged in domestic commerce of a single state. Because a majority THE LAWYERS CO-OPERATIVE PUBLISHING CO., of the court interpret the statute to this NEW YORK, 81 Nassau St. ROCHESTER, N. Y. CHICAGO, 505 Lakeside Bldg. Subscription 50 cts. per year post paid. Single copies, 5 cents. Advertising rates furnished upon application. effect, it is held unconstitutional, though Justices Moody, Harlan, McKenna, and Holmes dissent on the ground that the intent and proper interpretation of the act make it apply only to employees engaged in interstate commerce. On the broader question of the power of Congress to regu late the liabilities and relations of master Federal Employers' Liability Law. and servant when engaged in interstate com Conflicting decisions of the lower Federal courts as to the constitutionality of the Federal act of July 11, 1906, regulating liability of interstate carriers to employees. created much interest in the expected decision of the United States Supreme Court on the subject. That decision, in the case of Howard v. Illinois C. R. Co. 207 U. S. Adv. Ops. 1907, p. 141, 28 Sup. Ct. Rep. 141, has just been rendered. On the broad question of the constitutional right of Congress to legislate on the subject of the relations between master and servant in case of interstate railroads, the majority of the justices agree in support of the statute. But the Chief Justice and Justices Peckham and Brewer are not prepared to agree that Congress has such power. They do, however, agree with Justices White and Day that the act in question is unconstitutional because it attempts to regulate the relations of interstate railroads, not only with their employees who are engaged in interstate commerce, merce, these justices agree with Justices White and Day, making a good majority of the court in support of this power of Congress. While the particular statute in question is overthrown, the power of Congress to enact a constitutional statute on the subject is estab, shed. Therefore the range of congressional power to regulate interstate business is now established to a broad extent, not merely with reference to the relation of a carrier to passengers and shippers, but also with relation to its employees and all the incidents of their employment, including the matter of liabilities in case of negligence of fellow servants, the use of safety appliances, and various other matters. Any supposed distinctions between the power to regulate interstate business and the relations of the particular individuals who may be engaged in it, including master and servant, seem to be effectually denied by this decision, notwithstanding the fact that the immediate effect of it is to hold the particular act before the court unconstitutional. What Constitutes Contributory In- ers sold, like the ink in the present case, iringement. did not constitute any element of the patented device. But it was alleged in that Does the sale, in the ordinary course of case that the defendant was making and business, of a staple article of commerce, selling fasteners that were adapted only to constitute an infringement of patent, if the use with these patented machines, and sold sale is made to one who uses the article in them with intent that they should be used connection with some patented device, in in infringement of the patent. In the ink violation of a condition of his license therecase the circuit court of appeals reversed for, to the effect that he shall buy all such the decision against the seller. All the supplies from the licensor of the patent? judges agreed that there was not sufficient The question was presented with unusual proof that the defendant had notice that the sharpness in the recent case of Cortelyou v. ink was to be used in infringement of the Johnson & Co., decided by the Supreme patent. The majority of the court went Court of the United States, Adv. Ops. 1907, further, and held that the doctrine of con105, 207 U. S. 196, 28 Sup. Ct. Rep. 105, tributory infringement did not properly exaffirming the decision of the circuit court tend to the case. The position of the maof appeals in 76 C. C. A. 455, 145 Fed. 933, jority was substantially as follows: That which reversed the decision of the circuit one who should sell an element of a patcourt in 138 Fed. 110. This was a case in ented combination which could not be used which the defendant was charged with con- except in an infringing combination or tributory infringement of a rotary neostyle, device would be guilty of infringement, and because it sold ink to a person who used it that this would be true whether the artiwith the neostyle in violation of a provision cles sold were patented or not, if they were of his license to the effect that he should not made for the express purpose of inducing inuse the neostyle with any ink or other sup-fringement, and were not intended for any plies except those that he bought from the legitimate use, but that it was doubtful if licensor. Without questioning the liability of the licensee for infringement in violating this restriction, the interesting question is as to the liability of the ink manufacturer for selling ink, in the regular course of business, to the licensee of the neostyle, when the ink was not made expressly, or even especially, for the neostyle, but as an article for general use by the public. The circuit court held that this sale constituted a case of contributory infringement, on the ground that the seller of the ink sold it, not only with knowledge of the purchaser's intent to use it in violation of the patent, but also induced and procured him to purchase it by misstatements and misrepresentations as to his rights under the license. One of the cases chiefly relied on for this decision is that of Heaton-Peninsular Button-Fastener Co. v. Eureka Specialty Co. 35 L.R.A. 728, 25 C. C. A. 267, 47 U. S. App. 146, 77 Fed. 288, which was a case in which the defendant was held liable for contributory infringement. He induced a licensee under a patent to purchase the articles for use in violation of his license, by persuading him that he could do so with impunity. This is what is sometimes called the Button-Fastener Case, and the fasten the doctrine should be extended to a sale of the ordinary commodities of life merely because the purchaser used them in connection with a patented machine, under a license which gave to the licensor a monopoly of the right to furnish the supplies to be used with it. The opinion of the majority proceeds to develop its position on this question as follows: "Should the patentee of a fountain pen, by such a notice as we have under consideration, be permitted to hold as an infringer one who sells ink to the owner of the pen, even though he knows of the restriction? To compel the dealer to make inquiries and take the precautions necessary to save himself from being sued as an infringer would place intolerable burdens upon business. Should the patentee of a motor car, by such proceedings, be able to hold the monopoly on all gasoline used in its propulsion, or the patentee of a stove or a refrigerator have an action of infringement against one who furnishes ice or coal, respectively, to its owner? These may seem to be extreme cases, and yet they are not so far beside the mark as may at first appear. It was stated at the bar that among the 'supplies' necessary for the operation of the neostyle were Ir oil and varnish. It is not easy to perceive certainly some responsibility with which how a machinist who lubricates the machine a dealer may be legally charged, for the and the painter who varnishes it can es- sale of staple articles of commerce. cape the charge of infringement. If the respective of any statutory restrictions, a doctrine be driven to its ultimate conclu- dealer who should sell firearms and amsion, the merchant and the consumer may munition to an insane person, or any other find themselves enmeshed in a network of person, knowing of an intent of the purmonopolies embracing all the necessaries of chaser to commit murder, might find himlife. No one may safely sell coffee to the self under the condemnation of the law as consumer but the patentee of his coffee an accessory to the crime; but that prinmill; no one can furnish him flour but the|ciple could hardly apply to the sale of harmpatentee of his baking pans; and he may yet be compelled to buy milk from the patentee of his milk can, and soap from the patentee of his bath tub. It is manifest that the doctrine may be expanded ad infinitum. We incline to the opinion that the line should be drawn to include those articles which are either parts of a patented combination or device, or which are produced for the sole purpose of being so used, and to exclude the staple articles of commerce." The decision of the circuit court of appeals was affirmed by the Supreme Court on the question of lack of notice of any intent to infringe, and held that it was unnecessary to consider the other ground, as to what is the full extent of the doctrine of contributory infringement. That question is therefore still unsettled, and it is a question that is far reaching, which we may presume the court will not settle until it is necessary to do so. So less articles, the use of which by an in- The sale of staple articles of commerce in the ordinary course of business cannot be made subject to possible liabilities for contributory infringement in case the arti-court says it has been repeatedly held that, cles are so used by the purchaser in connection with some patented article in violation of his license, without greatly increasing the risks of legitimate business. It puts an unreasonable and well-nigh intolerable burden upon a dealer in legitimate and staple articles of commerce, to charge him with responsibility for the uses to which his harmless and useful merchandise may be put by the purchaser, in violation of a contract with some third person. Even if the seller has notice that the purchaser is likely to use such articles with a patented machine, and thus violate his license, it seems very doubtful if he can be reasonably charged with contributory infringement merely because he does not refuse to such purchaser the right to buy what the rest of the public are lawfully buying. There is if one maliciously interferes in a contract between two parties, and induces one of them to break that contract to the injury of the other, the party injured can maintain an action against the wrongdoer. Under the decisions the court therefore held that, if one railroad company by its wrongful conduct induced another company to break its contract with a person, it would be liable for damages; a fortiori when it not only induced a breach of the contract, but disabled the other company from performing it. The decisions on this subject, however, are not free from conflict. Thacker Coal & Coke Co. v. Burke, 59 W. Va. 253, 5 L.R.A. (N.S.) 1091, 53 S. E. 161, though that was a case of enticing a servant and of conspiracy, the court laid down the broad doctrine that, if one wantonly and In maliciously, whether for his own benefit or not, induces a person to violate his contract with a third person, to the injury of that third person, it is actionable. But, on the other hand, in Boyson v. Thorn, 98 Cal. 578, 21 L.R.A. 233, 33 Pac. 492, the California supreme court held that maliciously inducing another to break a contract with a third person will not create a liability to the latter when it is done without threats, violence, fraud, falsehood, deception, or benefit to the person inducing the breach. A note to that case presents a considerable body of authorities on the subject. They leave the question still some what unsettled as to the limitations of the doctrine. It is a fine question as to just what should be held sufficient to constitute an actionable case of inducing or aiding in the breach of contract with a third per son. But it seems clear that mere notice to the seller of a staple article of commerce that the purchaser in buying it is breaking a contract with a third person is insufficient to create a liability. If the law on this subject is to govern in the sale of articles to licensees of patents, it seems safe to say that the courts will hold, on the one hand, that mere notice to the seller of the purchaser's intent to break his contract with a licensor will not create liability, and that, on the other hand, any fraud or deception in inducing him to break such contract will create a liability. Between these two extremes would be some difficult questions. One would be as to inducing such licensee to break his contract by actively soliciting his orders. But even such active inducement would not seem enough to create a liability for breach of contract with a third person. Another question would be as to the correctness of the decisions already rendered which hold that one who makes articles that can be used only with a patented machine, and sells them to a licensee whose use of them will violate his license, becomes liable thereby to the licensor for contributory infringement. It has often been said that fraud or malice is essential to create a liability for inducing the breach of a contract with a third person. In the case supposed there would be no fraud. What would constitute actionable malice in cases of this kind does not seem to be yet clearly determined. There are two questions, at least, therefore, that need to be solved: First, Is the liability in these cases of contributory infringement to be determined with reference to the law as to inducing the breach of contracts with third persons? Second, In the absence of fraud or deception, what will constitute actionable malice in inducing a breach of such contracts. It seems fairly certain, at least, that, to create such liability, something more will be necessary than the sale of staple articles of commerce, in the regular course of business, and with no other purpose than the promotion of the business of the seller, even though the sales are made with knowledge that the purchaser by his purchase is breaking a contract with a third person. Baggage Without a Passenger. A Michigan correspondent courteously takes issue with the position of CASE AND COMMENT for October, 1907 (vol. 14, page 64), and of the annotation in 55 L.R.A. 650, in the matter of the comments on the case of Marshall v. Pontiac, O. & N. R. Co. 126 Mich. 45, 85 N. W. 242. That case decided that one who bought a ticket for a certain trip, and used it to check his trunk, but did not himself go on the train, or intend to use the ticket for his own passage "for some time thereafter, if ever," but who traveled to his destination in a private conveyance, was not a passenger, and that the railroad company was only a gratuitous bailce of the baggage. The court declared the doctrine that "baggage implies a passenger who intends to go upon the train with his baggage, and receive it upon the arrival of the train at the end of the journey." It says the purchaser of the ticket, "without having been a passenger, asks the same protection as if he had been one," and that, "if he had sold the ticket (which he might have done) to another passenger, he would stand in no different light from that in which he does now." The court further declared that "a baggage master has no authority or right to check baggage for any other than a passenger." The comments on the decision, with which our correspondent takes issue, were to the effect that it was based on a theory of a relation of baggage to the passenger which does not at all fit the modern practice of railroad transporta tion in this country. And as clearly understood as the former. The Michigan case did not enter into any consideration of the effect of modern methods of railroad business to change the rules applicable to baggage in the old stagecoach days, but decided the case on the theory that the checking of baggage by a railroad company, though it is done on the presentation of a ticket which has been bought and paid for, for the purpose of checking the baggage, is purely gratuitous on the part of the company, unless the holder of the ticket actually rides on it, or at least expects to do so when he buys it. At the time when the comments by the annotator in 55 L.R.A. 650, were made, they were based solely on what seemed to be the clear reason of the matter, as there were no judicial precedents to support them in con In support of this contention it was said: "There seems to be nothing whatever in the modern practic of railroad transportation, with the system of checking baggage, to make it an implied part of the contract that the passenger shall go upon the same train, or, indeed, avail himself of his right to be carried at all, unless he chooses to do so. Having paid for two privileges there is no reason why he should be compelled to avail himself of both or neither, unless the carrier's burden in respect to one of them is increased by his failure to exercise the other. It is not possible to see how this is the case. The carrier's duty with respect to the baggage is in no sense more onerous by reason of the owner's absence from the train." In early days, when carriers did business by stage coach and similar conveyances, the presence of the passenger with the baggage may have been a material safeguard against the loss of the baggage. But in these days, when there are many trains on which a passen-troverting the Michigan decisions. But a ger's baggage cannot be taken with him, but must be sent on an earlier or a later train, and when the baggage is absolutely beyond his control, as well as out of his sight, from the time it is checked until the time when he reclaims it by surrendering his check, the passenger's presence on the same train with the baggage is no longer a neces-ing it on the presentation of a ticket at sity or in any sense an advantage to the stations, general ticket offices, and the carrier, while it is often rendered impossible homes of passengers, we are of the opinion by the carrier's own regulations. If it is that there is now no good reason for the not an essential element of the right of the rule claimed, if ever there were, and hold owner of the ticket to have his baggage car- that a railway carrier is not, as a matter of ried safely, that he go with it on the same law, liable only as a gratuitous bailee of train, it seems clear that it cannot be es- baggage which it has regularly checked, if sential that he should go on some other the passenger does not go on the same train train. To contend that it is so is to decide with it." The court therefore held that, against the carrier's liability on the merely where trunks were checked for one who had technical contentions that there can be no a mileage ticket, and baggage coupons were baggage without a passenger, and that no detached therefor, the carrier was not a one can have any rights as a passenger with gratuitous bailee of the trunks, although out being or intending to be actually trans- the owner did not go on the train with them, ported. It seems clear, however, that these and did not intend to do so, but intended propositions do not adequately represent the to go and did go in another direction, for actual agreement between the carrier and two or three days, before following the the purchaser of the ticket, but that he pays trunks. for two privileges: One, the right to ride to the designated destination, and the other, to have a specified quantity of baggage carried to the same place. The latter privilege is recent Minnesota case, McKibbin v. Wiscon sin C. R. Co. 100 Minn. 270, 8 L.R.A. (N.S.) 489, 110 N. W. 964, on almost the same state of facts involved in the Michigan case, refuses to follow that decision, and says: "In view of modern methods of checking baggage, and the custom of regularly check In the Michigan case the court said that the baggage master had no authority or right to check baggage for anyone but a passenger, and that in that case, if the |