coloring upon these boxes is mixed red, blue, and gilt, with the plaintiff's name prominently displayed upon them to indicate their origin. The defendants also manufacture similar diamond-shaped confections, on which the letter "W" is embossed, and which are put up in the same-sized packages, also labeled "Liquorice Pastilles." The plaintiff contends that this invades his rights, and has therefore brought suit to restrain their infringement, and compel the defendants to account in damages for the trade unfairly diverted from him. After a careful consideration of the various cases bearing on the subject, the conclusion was reached in Draper v. Skerrett (C. C.) 116 Fed. 206, that, to justify a court of equity in interfering in an alleged case of unfair competition, there must be something more than the mere duplication by the one party of the other's trade-name, and that this was to be found in the deceptive use of imitative methods of display, or other device by which the public are led into buying the infringer's goods where they intended to buy those of the original producer; the fraud so perpetrated being a legitimate ground for equitable interference, and the practical basis of it. It is by this standard that the complainant's right to relief in the present instance must be judged. Stevens Linen Works v. Don & Co. (C. C.) 121 Fed. 171; Allen B. Wrisley Co. v. Iowa Soap Co., 122 Fed. 796, 59 C. C. A. 54. Ten different points of resemblance between the plaintiff's goods and those put out by the defendants are claimed. They have, as it is said, the same name, "Liquorice Pastilles;" the same diamond shape; the same embossing of letters; the same mint flavor; the same diminutive size; the same black color; the same combination of gum and liquorice; the same retail price, 5 cents; the same-sized box or package; and practically much the same lettering thereon. But many of these are forced, if not fanciful, and relate to matters which the complainant could not expect, under any circumstances, to monopolize. His contention must be made out, if at all, on the use by the defendants of the words "Liquorice Pastilles" to designate their confections, and the adoption of the diamond form, bearing an embossed initial letter, together with any points of imitative display of which they may be guilty. If these do not establish unfair competition, there is nothing shown that will; the only significance of the others being as possible makeweights to strengthen that idea. But analyzing the matter still further, it is difficult to see how the plaintiff can claim the right to prohibit other manufacturers from putting up this confection in diamond form, any more than in a square, cube, oval, or drop. It is true that he has adopted a diamond with his initials, "H-H," as a trade-mark, and has denominated his goods, of which he has a great variety, "Diamond Confectionery;" but this does not give him a monopoly of that particular shape, even if he was the first to employ it for liquorice compounds, which he was not. Neither can he prevent others from stamping or embossing an initial letter thereon, so long as it does not imitate the monogram "H-H," which distinguishes his productions. This device has been employed for the purpose of marking their goods by others in the same trade, including the defendants, fully as long, if not longer, than the complainant. Furthermore, except as these so-called pastilles are sold in bulk, neither the form nor the lettering is brought to the attention of purchasers until after they have bought them; and while both, no doubt, even so, might aid in an intended deception, it has to be initially induced and practically accomplished by the outside of the package, as addressed to the eye of the customer, which is thus controlling. The case, in this view, is brought down to the use by the defendants of the words "Liquorice Pastilles," and the manner they have taken to dress their packages. But so far as the former is concerned, the plaintiff has shown no exclusive right in the words "Liquorice Pastilles" to designate this class of goods. Liquorice is a well-known article of commerce; and "pastille," a French diminutive, meaning a little piece of paste; and the two combined make a descriptive term in no way particularly distinctive of the goods which the plaintiff manufactures, any more than others. But conceding, for the sake of argument, that if the plaintiff was the first to employ the term, and had worked up a trade under it, so that it had become specially indicative of his goods, others might be compelled to abstain from their use, the fact is that he was not the originator of the name, which was used, by not one, but several, before and contemporaneously with him, applied to exactly the same character of confections. As early as 1869, and for upwards of 20 years after that, the Roworth Manufacturing Company sold small pieces of liquorice under the name of "Pastilles de Paris," and Duche & Sons for 12 or 14 years past have sold round pieces stamped with an eagle, and known as "Flexible Liquorice Pastilles." "Pastilles de reglisse," which is the French for "liquorice," made by Florent & Co., of Avignon, France, have been imported into this country for upwards of 20 years; and they are also made by Warric Bros., of Paris, and by Wilkenson & Co., of London, but for just how long does not appear. In the face of this demonstration, it cannot be successfully contended that the term "Liquorice Pastille," which has been in such long and familiar use, is distinctive of the plaintiff's manufacture. It is only when he adds his name and trade-mark that we have anything that is, and these the defendants in no way imitate. Neither do they the style or coloring with which he dresses out his package. This is in mixed red and blue, set off with gilt, with the diamond trade-mark prominently displayed; while the defendant's package is predominantly yellow, with an entirely different style of lettering in red, shaded with white on a black background, with their name written below. There is nothing whatever to suggest an attempt to catch the unwary purchaser, and inveigle him into taking the one when he was seeking the other; nor could the most careless be deceived, except as he was in reality unconcerned as to which he got. It does not seem to me that, having regard to these considerations, the complainant has a vestige of a case or that the doctrine with respect to unfair competition could be made to apply to it, except by a most unwarranted extension and strain. Undoubtedly the complainant has extensively advertised these goods, and it may be that the defendants are reaping some of the benefit of it. But so long as he has seen fit to do so, employing the common and ordinary name of "Liquorice Pastilles," he must take the ill results with the good. He certainly cannot expect to enjoy a monopoly based solely on that which he did not create. What has been said with respect to the 5-cent boxes applies with even greater force to the larger packages and the sales in bulk. Without stopping to particularly discuss that feature of the case, this reference will show that it has not been overlooked. Let a decree be drawn dismissing the bill, with costs. PALATO v. INTERNATIONAL SILVER CO. (Circuit Court, D. Connecticut. April 21, 1904.) 1. MASTER AND SERVANT-INJURY OF SERVANT-NEGLIGENCE OF FELLOW SERVANT. Evidence considered, and held to show that the injury of an employé by the falling of the ram of an hydraulic press, which he was assisting to repair, was not due to any defect in the appliances used, nor to the incompetence of a fellow servant, but, so far as appeared, to his negligence, for which the master was not liable. At Law. Canfield & Judson, for plaintiff. PLATT, District Judge. This is a hearing in damages after default, under the state practice, in an action by Louis Palato to recover $3,000 damages for injuries which he claims to have suffered from the negligence of the defendant, transferred from the state court for diversity of citizenship. Having heard the evidence, I find the following facts: On June 6, 1903, at the defendant's factory, in Derby, Conn., a certain hydraulic press became out of repair, and required repacking. The plaintiff had for many years been employed upon that press, and at times upon a smaller one in the same room. Each press had required repacking about once in six months, and the plaintiff had been present at and taken part in nearly all such repackings, and was thoroughly experienced in all the details connected therewith. A necessary part of such work was to lift out the ram or plunger which was used in connection with the dies in stamping out the metal blanks. The ram was circular in form, with a diameter of about 17 inches, about 17 inches in height, and weighed about 1,000 pounds. When in use, it was raised by hydraulic pressure so that its upper surface reached the head of the press, and then, by removing the upward pressure, was permitted to fall of its own weight upon the die below. The lower face of the ram, when so raised that its upper surface reached the head of the press, had a fall of about 11 inches before it reached the face of the die, which was set in a cylinder of practically the same diameter. Whilst the work of repacking was going on, the ram was controlled by a block and falls. The way of it was this: Above the room in which the press stood was a small attic room, called the "fanroom." That room was used to get the height necessary for the action of the lifting apparatus. There was a trapdoor immediately over the head of the press. A pulley was securely fastened by an eyebolt screwed into the ceiling of the fanroom. This could be raised and lowered somewhat, and, in addition, a chain could be suspended from a hook at the lower part thereof. The chain was dropped down through the trapdoor, and through a circular opening in the head of the press, a trifle larger than the chain, into a like. opening in the ram, where it was fastened by a crossbar of steel, The length of this chain was then governed by a hitch made over the hook suspended by the pulley. In each instance of repacking, the play of the pulley not being sufficient for the purpose, several hitches were made up in the fanroom-sometimes three, sometimes four, depending upon the number of times it was necessary to carry the ram away from its central location, and toward the edge of the press or beyond. The vitals of the case center around this hitch. I will now describe briefly the actual proceedings on the day of the accident: Edward J. Welch was the foreman in charge of the hydraulic press work. It is conceded that he had not at the time sufficient experience to have attended to the hitches himself. He put several men at work on the repacking. Abram N. Burke was put in charge of making the hitches in the fanroom above. Palato and others worked on the press in the room below. The ram was lifted out and taken to one side, and then brought back several times; Burke attending to the hitches in the fanroom. At last, while the ram was resting upon a circular board, about two inches in thickness, placed over the cylinder, the chain being still fastened to the ram by the steel bolt, the signal was given. to Burke to lift the ram toward the head of the press by the pulley. Just before that Palato says that he thought he saw a vibration, and asked if the hitch was solid. Burke called out that it was all right, and the ram was lifted from its resting place. At the instant when it reached the head of the press, Palato reached under the ram, with oiled waste in his hand, and began to wipe off the undersurface of the ram. As he did so, the ram fell upon the circular board, and mangled his arm from .the wrist to the elbow. Fortunately the ram began to tip sideways when it came upon the board, and, with Welch's assistance, the weight was removed from Palato's arm. No bones were broken, but the contusion was serious; and, in discussing the extent of the injury, the plaintiff claims that the nerves were seriously and probably permanently injured, so that the arm can never be used again with its normal' power, and the defendant insists that the injury was mainly in the ligaments and muscles, which have practically recovered their normal use, and that he is on the high road to full recovery. In that part of the case, it was important to establish the existence of a certain bony growth near the elbow socket, and, as bearing upon that question, certain X-ray pictures, called "skyographs," were admitted in evidence. The case turns upon the kind of hitch which it was safe to use, upon Burke's competency to make the hitch, and upon Palato's carelessness in reaching his arm under the ram to wipe it, when the situation an instant before had been such as to suggest to him that the danger was approaching which did in fact reach him in the twinkling of an eye. Burke was in the fanroom alone, and made the hitches. He made the hitch in this way: A link chain of sufficient strength, 6 feet and 9 inches long, having been attached to the ram below as heretofore described, was thrown over the hook in such a manner that the chain was supported by the hook above its heel, and crossed in the dip of the hook below and opposite; the free end falling first across the dip, and the weight-carrying portion lying upon the free portion. By this simple device, it is evident that, owing to the force of friction, the chain can carry the full weight of its capacity, and, the greater the weight, the greater the security. It is a well-known hitch, in common use among practical engineers and mechanics, called the "Blackwall Hitch," and can be found described in any well-known text-book touching on such matters. It is easily understood by a man of fair intelligence. I find as a fact that the hitch used was a proper one in the circumstances, and that Burke was a competent man to be employed in making it. His experience with the hitch was sufficient, and the master was not negligent in intrusting the management of it to him. Palato had made hitches in former years, but, owing to the loss of some fingers about four years before the accident, had been forced to desist. One Silvester had also attended to the hitches on many prior occasions. Both of these men gave evidence that in making the hitches they had always used a double hitch, to wit, had thrown the chain twice around and above the heel of the hook, which they insisted increased the security of the fastening, but I am unable to accept their statements as true. The surrounding and underlying facts and circumstances belie the statements as to the way they had made the hitch, and it is not apparent that absolute security, or even that better security, would result from the double hitch. Burke testified that he made the hitch as he had made it on several former repackings, and as he had seen Silvester and Palato make it. I am entirely satisfied, from the appearance of the witnesses, and from their manner when testifying, and from other evidence, and from the general situation, that Burke told the truth when he so testified. All the appliances are conceded to have been proper, and I find that Burke was fit and competent to adjust the appliances. It is contended that the single hitch is unsafe when the tension is not uniform, that the evidence in this case shows clearly that the tension was not uniform, and that therefore its adoption makes the master liable. The difficulty with that contention is this: It is proven, and I find as a fact, that after each hitch was made the tension was uniformvarying, it is true, in intensity, but existing nevertheless to some ex |