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then such is prima facie evidence of negligence on the part of the defendant. This, however, does not preclude the defendant from rebutting such prima facie evidence of negligence by showing that it had not knowledge of the defect and that it was not guilty of negligence. In order to overcome such presumption, the defendant must show by a preponderance of the evidence, that it did not, at the time of the bursting and breaking of said water glass, have such knowledge, and that it could not have obtained such knowledge by the use of ordinary care, skill and diligence."

The Supreme Court, among other things, in respect of the meaning of this statute, said:

“But while the effect of this statute in the cases to which its provisions apply, is to so modify the rules of evidence as to make the proof of such defect prima facie evidence of negligence on the part of the corporation, yet this statute neither changes nor affects the rule as to the quantum or degree of evidence sufficient or necessary to rebut and control the prima facie case thus raised. The general rule would seem to be well established by an almost unbroken line of authority, that to rebut and destroy a mere prima facie case, the party upon whom rests the burden of repelling its effect, need only to produce such amount or degree of proof as will counter-avail the presumption arising therefrom. In other words, it is sufficient if the evidence offered for that purpose counter-balance the evidence by which the prima facie case is made out and established. It need not overbalance or outweigh it. Smith v. Sac Co., 11 Wall. 139, 20 L. Ed. 102; Stewart v. Lansing, 104 U. S. 505, 26 L. Ed. 866; Foster v. Hall, 12 Pick. 89, 22 Am. Dec. 400; R. R. Co. v. Brazzil, 72 Tex. 233, 10 S. W. 403.

“In the present case the cause of action pleaded and relied upon by plaintiff is grounded solely upon the alleged negligence of the defendant railway company. The general denial in the answer of the railway company puts in issue every allegation of fact in the petition necessary to establish in the plaintiff a right to recover, and the allegation of negligence being the allegation of a material and affirmative fact, the burden, at all times, was upon the plaintiff to establish such fact by a preponderance of the evidence. During the progress of a trial it often happens that a party gives evidence tending to establish his allegation, sufficient it may be to establish it prima facie, and it is sometimes said that the burden of proof is then shifted. All that is meant by this is, that there is a necessity of evidence to answer the prima facie case or it will prevail; but the burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue, and this burden remains throughout the trial. Heineman v. Heard, 62 N. Y. 448. Whether in the case at bar the defendant railway company was guilty of such negligence as would create a liability against it, depended upon the whole of the evidence, as well that which by force of the statute constituted a prima facie case against the defendant, as all the other evidence produced by plaintiff tening to corroborate and, by the railway company, tending to rebut the charge of negligence made against it; and if upon the whole case defendant's negligence was not established by a preponderance of the evidence, or if upon all the evidence adduced upon that issue the case was left in equipoise, the defendant was entitled to a verdict, and the jury should have been so charged. Instead, the jury was instructed by the trial judge that to overcome the presumption or inference of negligence raised against it by the statute, the defendant company 'was required to satisfy you by a preponderance of the evidence that it is not negligent.' This, we think for the reasons above stated, was clearly misleading and erroneous."

Under this opinion, as well as that in the Kreager Case, it is obvious that negligence is just as much the ground upon which the liability of a railway company rests under the provisions of the fire statute as it would be if there was no such statúte. The statute only provides that proof of the fact that fire was caused by escaping sparks shall constitute prima facie evidence of negligence. This, as we

have already shown, was the conclusion of many courts as to the effect of such evidence independently of any statute.

This is also what the statute does in respect to an injury to an employé resulting from a defect in car, engine, or appliance of a railway company. If a passenger had shown an injury through defective appliance, nezligence would be presumed. At the common law this was not the case as to an employé. The latter must go on and affirmatively show that the defect was due to negligence and this he would commonly do by evidence that it was known or should have been known to the master, who had neglected the duty of repair. But the statute construed in the Klunk Case provides that proof by the fact of an injury from a defect “shall be prima facie evidence of negligence on the part of such corporation.” Whether the action be by an employé for an injury due to a defective engine, or by an owner of property destroyed by fire communicated by sparks from an engine, the statute in substance says:

“That in the one action the fact of an injury by a defect in the engine shall be prima facie evidence of negligence and in the other the fact that the fire was started by escaping sparks from an engine shall likewise be prima facie evidence of negligence.

In both cases the statute effects a mere matter of evidence and in both instances the burden of proving negligence is upon the plaintiff, it shifting only when he has proven one fact from which the other fact, negligence, is inferred and prima facie made out until rebutted or countervailed by evidence of due care. Upon principle we can see no room for distinction between the statute interpreted in the Kreager Case and that under consideration in the Klunk Case in so far as that under each proof of one fact is made to constitute prima facie evidence of another.

In the Kreager Case the question of what would counterbalance the prima facie evidence of negligence was not involved. That the burden is shifted by the statute to the defendant is true, but, as stated in the Klunk Case:

"To rebut or destroy a mere prima facie case, the party upon whom the burden rests of repelling its effect, need only to produce such amount or degree of proof as will countervail the presumption therefrom. In other words, it is sufficient if the evidence offered for that purpose counter-balance the evidence by which the prima facie case is made out and established. It need not overbalance or outweigh it."

There is, we think, no conflict between the Kreager and Klunk Cases. The latter is the later decision and we can but regard it as an authoritative construction of one Ohio statute which, in respect to the point construed, is identical with the Ohio statute here involved.

If it was error to charge that the prima facie evidence of negligence arising from proof of one fact under the one statute could be overcome only by a preponderance of the evidence bearing upon the question of negligence, it was error to charge that such a preponderance was necessary in the case at bar. This the trial judge did and an exception was sufficiently reserved.

For this error the judgment must be reversed, and a new trial awarded.

MCDEARMOTT COMMISSION CO. et al. v. BOARD OF TRADE OF CITY

OF CHICAGO.

(Circuit Court of Appeals, Eighth Circuit. July 9, 1906.)

No. 2,401. EXCHANGES—RIGHT OF PROPERTY IN MARKET QUOTATIONS-RESTRICTED PUB

LICATION.

A board of trade, which has a right of property in market quotations collected in its exchange, does not surrender or dedicate them to the public by permitting subscribers, to whom they are communicated upon condition that they shall not be made public, to post them upon blackboards in their places of business, where the posting is done for the advantage of the subscribers, and not of the public, and does not make knowledge of the quotations general, or make them accessible to the public as of right, or render them of no further value.

[Ed. Note.For cases in point, see vol. 21, Cent. Dig. Exchanges, $ 16; Quotations of prices and transactions on exchanges, see note to Sullivan

v. Postal Tel. Cable Co., 61 C. C. A. 2.] (Syllabus by the Court.)

Appeal from the Circuit Court of the United States for the Western District of Missouri.

For opinion below, see 143 Fed. 188.

James H. Harkless (Charles S. Crysler and Clifford Histed, on the brief), for appellants.

Martin H. Foss (Henry S. Robbins, on the brief), for ap ee.

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District Judge.

VAN DEVANTER, Circuit Judge. This is an appeal from an interlocutory order granting an injunction restraining the appellants from acquiring and using certain continuous market quotations without the appellee's consent.

Recognizing that these quotations as collected by the appellee in its exchange are its property, that while they remain such it has the right to control their acquisition and use by others, and that wrongful invasions of this right may be restrained in equity (Board of Trade v. Christie, 198 Ù. S. 236, 25 Sup. Ct. 637, 29 L. Ed. 1031; Board of Trade v. Cella Commission Co. [C. C. A.] 145 Fed. 28), the appellants rest their opposition to the injunction upon the sole claim that they do not obtain the quotations until they have been given to the public with the appellee's knowledge and approval, and have ceased to be private property. In brief, the facts are these: Under an arrangement between the appellee and certain telegraph companies, which act as distributing agents, the quotations—that is, those wherein the price of any commodity is quoted oftener than at intervals of 10 minutes—are communicated by telegraph to commercial exchanges, brokers, and others throughout the country upon the express condition that they shall be used only in the private and individual business of the receiver ; that they shall not be sold, communi

146 F.–61

cated, or otherwise given to news distributors or others; that no one shall be allowed to directly or indirectly take them from the office of the receiver, or to make a wire connection with the instrument or wires over which they are received; and that a failure to strictly comply with any of these requirements shall terminate the receiver's right to a continuance of the service. By reason of a charge which is made for communicating the quotations in this way, their collection and distribution are a source of substantial profit or gain to the appellee. Many of those to whom they are so communicated immediately post them upon blackboards in their places of business as a convenient means of stimulating and facilitating trade. These places of business, including the commercial exchanges, are maintained by private owners for the transaction of private business, and members of the public enter, not as a matter of common right, but only by the license of the owners, and usually for purposes in connection with their business. The posting seems to be with the knowledge and approval of the appellee, but not with any assent that the quotations may be copied and taken away or reproduced and used elsewhere. The appellants are brokers and commission merchants at Kansas City, Mo. In some systematic way, not satisfactorily disclosed, but confessedly without the consent of the appellee, they obtain the quotations immediately upon their being posted by those who rightfully receive them. They then display them upon blackboards in their own offices, and use them in their own business in like manner as do their competitors, who pay for them. The time intervening after the quotations are posted by others and before they are displayed in the appellants' offices is sometimes five minutes, but generally is much less.

It is the contention of the appellants that in the circumstances described the posting of the quotations by those who rightfully receive them is a general publication, and instantly operates as a surrender or dedication to the public of the proprietary rights of the appellee. The Circuit Court held otherwise (143 Fed. 188), resting its decision largely upon the reasoning and conclusion of the Supreme Court in Board of Trade v. Christie, supra, where it is said:

“The plaintiff does not lose its rights by communicating the result to persons, even if many, in confidential relations to itself, under a contract not to make it public, and strangers to the trust will be restrained from getting at the knowledge by inducing a breach of trust, and using knowledge obtained by such breach [citing cases). The publication insisted on in some of the arguments were publications in breach of contract, and do not affect the plaintiff's rights. Time is of the essence in matters like this, and it fairly may be said that, if the contracts with the plaintiff are kept, the information will not become public property until the plaintiff has gained its reward. A priority of a few minutes probably is enough.”

While that case in principle goes far toward sustaining the ruling of the Circuit Court, we think it must be conceded to the appellants that it does not determine the precise question now presented, that is, whether the posting of the quotations in the circumstances described is such a general publication as to make them public property. The question is not, however, altogether new. It was presented and

determined adversely to the appellants' contention in Board of Trade v. Hadden-Krull Co. (C. C.) 109 Fed. 705, where it was said by Judge Seaman:

“These market quotations are peculiar in their property use and value, and, without immediate transmission to the customer, so that he receives them simultaneously with all other customers, and before their publication generally, they possess no purchase value. To make them available, it is essential to have the quotations written or printed in some form for the information of all entitled to their use; and it appears here that they were in some instances so furnished in the 'ticker,' and in others were placed on a blackboard in the office of the customer. No reason appears for finding a publication in the one method if not in the other, and I am of opinion that neither constitutes a dedication to the public while limited to the use and office of the customer."

Older and more frequent application of the principle underlying that decision is found in the cases defining the common-law rights of an author in his literary or dramatic composition. Thus a professor of a university, who delivers orally in his classroom lectures which are his own composition, does not communicate them to the public, so as to entitle one who hears them, or another, to print and circulate them without his permission. 2 Story, Eq. Jur. $$ 943, 949 ; Abernethy v. Hutchinson, 1 H. & T. 28; Caird v. Sime, L. R. 12 App. Cas. 326; Bartlette v. Crittenden, 2 Fed. Cas. 981, No. 1,082; New Jersey State Dental Society v. Dentacura Co. (N. J. Eq.) 41 Atl. 672; Id. (N. J. Err. & App.) 43 Atl. 1098.

43 Atl. 1098. And an author of a drama or play, who permits another to represent it upon the stage, does not surrender or dedicate it to the public, so as to entitle one who attends its representation, or another, to print and publish it, or to represent it upon the stage, without the author's permission. 2 Story, Eq. Jur. $ 950; Macklin v. Richardson, Amb. 694, 2 Eng. Rul. Cas. 66; Turner v. Robinson, 10 Irish Ch. 121, 510; Roberts v. Myers, 20 Fed. Cas. 898, No. 11,906; Boucicault v. Fox, 3 Fed. Cas. 977, No. 1,691; Crowe v. Aiken, 6 Fed. Cas. 904, No. 3,441; Tompkins v. Halleck, 133 Mass. 32, 43 Am. Rep. 480; Palmer v. Dewitt, 47 N. Y. 532, 7 Am. Rep. 480. In the last case it is said:

“So far as is disclosed by the case, the drama remained in manuscript until printed by the defendant, and there is no claim that it has been published by the author or the plaintiff, or with their assent, except by its public performance on the stage; and if it has not, by that act, become publici juris, it still remains the private property of the author or his assignee, who alone have the exclusive right to it, and may prevent its publication. When a literary work is exhibited for a particular purpose, or to a limited number of persons, it will not be construed as a general gift or authority for any purpose of profit or publication by others. An author retains his right in his manuscript until he relinquishes it by contract, or some unequivocal act indicating an intent to dedicate it to the public. An unqualified publication by printing and offering for sale is such a dedication. The rights of an author of a drama in his composition are twofold. He is entitled to the profit arising from its performance, and also from the sale of the manuscript, or the printing and publishing it. Lectures and plays are not, by their public delivery or performance, in the presence of all who choose to attend, so dedicated to the public that they can be printed and published without the author's permission. It does not give to the hearer any title to the manuscript or a copy of it, or a right to the use of a copy. The manuscript and the right of the author therein are still within the protection of the law, the same as if they had never

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