Adventures in Good Eating v. Best Places to Eat

• Decision Date: 19 December 1942
• Docket Number: No. 8032.,8032.
• Citation: 131 F.2d 809
• Parties: ADVENTURES IN GOOD EATING, Inc., v. BEST PLACES TO EAT, Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

131 F.2d 809 (1942)

ADVENTURES IN GOOD EATING, Inc., v. BEST PLACES TO EAT, Inc.

No. 8032.

Circuit Court of Appeals, Seventh Circuit.

November 12, 1942.

Rehearing Denied December 19, 1942.

Wm. Cyrus Rice, of Grand Rapids, Mich., and Charles W. Rummler and Julian C. Ryer, both of Chicago, Ill., for appellants.

Delbert A. Clithero, Carlton L. Fischer, Herman A. Fischer, and Raymond P. Fischer, all of Chicago, Ill., for appellee.

Before EVANS, MAJOR, and KERNER, Circuit Judges.

EVANS, Circuit Judge.

A copyright infringement suit is before us. Defendants were enjoined from selling their book "Best Places to Eat" because the court found it to be an infringement of the plaintiff's copyrighted book "Adventures in Good Eating." Both books were compilations of choice restaurants located throughout the United States, and were made to aid travelers, of whom there are (or were) many, who appreciate good eating places.

The decree of the District Court adopted the report of a master, and provided, in addition to the injunction and provision for destruction of existing copies, for the recovery of damages, master's fees, and attorneys' fees totaling $5,915.50¹ from both the corporate defendant, and Mr. Barrett, its president and majority stockholder. The defendant, Illinois Automobile Club, of which Mr. Barrett was also president, was dismissed from the suit.

Appellants raise several minor and hypertechnical questions relative to copyright law, but the more substantial ones relate to the soundness of the finding of infringement, the liability of the corporate officer for the torts of the corporation allegedly his instrumentality, and the propriety of a reference and the cost thereof.

The Facts. The plaintiff's book is a small paper manual of less than three hundred pages, listing some 1400 eating places. It retails for $1.50 and about 180,000 have been sold. There have been eight editions. Defendants' book is of the same style, containing twenty-five less pages. They have published one edition of about 10,000 copies of which 3,500 have been sold at fifty cents a copy.

Defendant Barrett was president of the Illinois Automobile Association, which is a non-profit corporation. He decided to organize a corporation for profit, to edit and publish a book which would catalogue dining places throughout the United States. The book was to be sold to the members of the Automobile Association, and to the public generally. He organized the defendant corporation to effectuate this objective, with a capital stock of $1,000, of which he held sixty shares, his daughter, thirty shares (which he paid for), and a third person held ten shares. The new corporation occupied a room in the Automobile Club's building, rent free.

Infringement. Mr. Barrett hired a Mr. Cox, who wrote the copy for the book. Another employee was a typist. Both Mr. Cox and the typist (and Mr. Barrett) testified. Mr. Cox admitted that on the second day of his employment, at dinner, Mr. Barrett showed him a copy of plaintiff's book. The typist stated she saw a copy of plaintiff's book on Cox's desk, a couple of times. Other than that, there was no direct evidence which might bear on actual copying. Cox testified that Barrett handed him much material, including menus, memos of a salesman by the name of Goodman, who allegedly had extensive experience in traveling in the New England states, for which memos Barrett paid Goodman, $100. Goodman did not testify. Cox and Barrett both stated the copy or manuscript could not be located to verify the originality of the work. Cox stated he asked for it at the office, but being no longer in the defendant's employ, he had no right to search for it. Barrett stated a search had been made, but the copy could not be found.

Infringement must then be determined by an examination of the books themselves. The master did this, picking at random several quotations from plaintiff's book, 1936 edition, locating the analogous quotation in defendant's book, and placing them in parallel position, for comparison. The master found them to be sufficiently alike to constitute plagiarism, and the trial court made a finding of fact that the defendants' book was "to a substantial and material degree, copied from plaintiff's copyrighted book, and particularly from the 6th and 7th editions thereof, and that said book `Best Places to Eat from Coast to Coast' infringes the copyrights of the plaintiff's said book."

In reviewing this finding we have very carefully examined the two books, and conclude the finding is fact supported. The books bear a resemblance to each other, and the phraseology in many instances is strikingly similar. Defendants seek to explain the similarity in wording as the logical result of the copying by both plantiff and defendants of menus supplied by the restauranteurs listed in the books — that naturally and inevitably the same listing of prices, of specialties in food, and unusual features of the respective places would occur when the menus were used as source material in making up the copy. We are not convinced that this suggestion would explain the existence of such close and parallel wording, and especially would it not explain the substantially same selection of places listed in the respective books.

As corroborative on this finding of infringement was the existence of common errors in both books, — of telephone numbers, locations, etc. This matter of common errors is, of course, strong evidence of actual copying. Identical errors are not, without explanation of their source, to be taken merely as a happenstance or an innocent coincidence. Of course, if it be shown that the common error arose from misstatement by a source available to all, no unfavorable inference may be drawn from the common error. Defendants, here, chose not to enlighten the court as to the origin of the errors, but have availed themselves of technical objections to the manner in which common error was attempted to be established, — to-wit, by the Request for Admissions.

The plaintiff filed a "Request for Admission of Fact, etc., Under Rule 36 of the Rules of Civil Procedure." Defendants made no reply to this request for admissions, and the trial court accepted the statements in the request, pursuant to Rule 36 of the Rules of Civil Procedure, 28 U. S.C.A. following section 723c.

Rule 36 provides that:

"At any time after the pleadings are closed, a party may serve upon any other party a written request for the admission by the latter of the genuineness of any relevant documents described in and exhibited with the request or of the truth of any relevant matters of fact set forth therein. * * * Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than 10 days after service thereof or within such further time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters."

To illustrate, — it was stated, "The telephone number of the White Fence Farm, Lemont, Illinois, is not and has never been `Lemont 267,'" as both plaintiff's and defendants' books stated it to be. Other erroneous statements were of quite similar nature. Defendants were asked to admit the correctness of these statements. They declined to answer.

Defendants here argue that the request was not in proper form, and that plaintiff had the burden of proving that the telephone number had never been the number stated. The contention is without merit. If defendants object to the form of a request for admission they may seek relief from the trial court, or if they think the admission asked of them is without their knowledge to give, they may so state. But silence was here tantamount to an admission and is admissible to prove the fact here sought to be established, — namely, identical error appearing in a new book, and existing in the previously-published copyrighted book. The request for admissions would indicate that there were at least 21 identical errors in the two books. Obviously this corroborative evidence carried great weight.

Issues pertaining to copyright law. (1) Validity of Plaintiff's copyright. Defendants assert that plaintiff's proof is inadequate in respect to originality of material copyrighted. The certificates of copyright were introduced in evidence, and stated that Mr. Hines was the "Author." The statute provides, 17 U.S.C.A. § 55 that "Said certificate shall be admitted in any court as prima facie evidence of the facts stated therein." Defendants' answer denied that "Hines created and wrote such literary work and that the same is an original literary work." While we do not believe that mere denial is itself enough to overcome the prima facie weight of evidence which the statute gives to the certificate, and to shift the burden, we need not determine that question because Mr. Hines himself testified as to the originality of his book as follows:

"Q. Who compiled the material that is included in the directories? A. The material is compiled in my office. The material is written by me. Q. Who collects the material? A. It is collected by sending out inquiry blanks, or so-called questionnaires, or it comes from many eating places who solicit a listing in my book, or it comes from people I know. * * *. Q. Do you compile any of that material yourself? A. Oh, yes. * * * I generally plan to stop and eat at places that are recommended by a great many people, to ascertain if I think they qualify for a listing in my book."

It would be self-evident that a manual listing any particular kind of place might not be an original thought — in fact, the statute, Sec. 5, 17 U.S.C.A. makes a specific classification of "directories, gazetteers, and...