Christensen Engineering Co. v. Westinghouse Air Brake Co.

• Decision Date: 01 February 1905
• Parties: CHRISTENSEN ENGINEERING CO. v. WESTINGHOUSE AIR BRAKE CO. (two cases).
• Court: U.S. Court of Appeals — Second Circuit

135 F. 774

CHRISTENSEN ENGINEERING CO. v. WESTINGHOUSE AIR BRAKE CO. (two cases).

United States Court of Appeals, Second Circuit.

February 1, 1905

Wm. A Jenner, for plaintiff in error.

Frederic H. Betts, for defendant in error.

Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

WALLACE Circuit Judges.

These cases are before us on writs of error to review two proceedings in contempt, in each of which the order of the court below adjudged the defendant, in an equity suit brought to restrain the infringement of a patent, guilty of contempt for violation of an interlocutory injunction restraining such infringement. The two cases may be considered together conveniently.

The order in the first proceeding fined the defendant $1,000, and directed one-half of the fine to be paid to the clerk of the court for the use of the United States, and one-half to the complainant in the suit. The order in the second proceeding fined the defendant $4,000, and directed one-half of the fine to be paid to the clerk of the court for the use of the United States, and one-half to be paid to the complainant.

The injunction was granted October 18, 1901, and restrained the defendant from making or selling certain automatic air-brake apparatus particularly described therein. The defendant's principal place of business was in Milwaukee, Wis., but it had an office and a managing agent at New York City. A copy of the injunction was duly served upon its solicitors in the cause by the complainant's solicitors, October 21, 1901. October 28, 1901, the solicitors for the complainant sent a copy of the injunction to the defendant, inclosed in a registered letter properly addressed to the defendant at Milwaukee, and mailed at the city of New York, with postage prepaid. In July, 1902, the complainant, having been informed that the defendant had sold certain valves which were an infringement of the injunction to the Boston & Maine Railroad Company, called the attention of the defendant to the fact and sent a representative to Concord, N.H., to investigate. One of the valves found there which had been sold by the defendant was submitted to experts, and pronounced to be an infringement of the patent. In december, 1902, a notice of an application for an attachment for the violation of the injunction, together with a copy of the moving papers, was served upon the defendant's solicitors by the complainant's solicitors. These papers were transmitted by the latter to the counsel of the defendant at Milwaukee, and their contents were communicated by him to the manager of the defendant there. The defendant appeared upon the hearing of the application, and filed various objections to the proceedings. The court found that the defendant had sold four of the infringing valves on or about July 21, 1902. The affidavits introduced by the defendant in opposition to the application set forth, among other things, in substance that the infringing devices had not been constructed according to the directions given to its workmen, that its workmen were five or six hundred in number at its Milwaukee shops, and that the four valves had 'slipped through the shop' inadvertently. In deciding the motion, the court in its opinion said:

'The defendant, upon the record here presented, must be acquitted of any deliberate violation of the order of the court, its officers having given instructions not to make or sell such structures. Nevertheless, it is thought that an enjoined defendant should take such steps as will enforce obedience to its instructions on the part of its employes. This motion might have been avoided had proper attention been given to the notification served upon the defendant last summer that infringing valves had been found which had been sold by its employes since injunction.'

The order imposing the fine was entered January 10, 1903.

In July, 1903, the complainant learned from information derived from the American Car & Foundry Company that the defendant had sold to that company, upon an order given July 26, 1902, equipments embracing the infringing valves for between 25 and 30 cars, which were delivered to that company on the 28th of August, 1902, and by it shipped to the Denver & Northwestern Railway Company in April, 1903. Thereafter notice of a second application for an attachment for this violation of the injunction, together with copies of the affidavits upon which the application was based, was served by the complainant's solicitors upon the defendant's solicitors. When this motion came up for hearing, the defendant's solicitors appeared, and objected that such service was unauthorized. Thereupon the court made an order directing the complainant's solicitors to serve notice of the application for an attachment, and a copy of the affidavits to be used thereon, upon the defendant by registered mail. Pursuant to this order, the notice and a copy of the affidavits were duly mailed to the complainant's solicitors by depositing the same in the post office at the city of New York, May 21, 1904, in a registered letter properly addressed to the defendant, with the postage thereon prepaid. This letter was indorsed with the names of the complainant's solicitors. On May 26th the letter was returned to the complainant's solicitors by the postmaster with the official indorsement 'Refused'. At the time and place of hearing mentioned in the notice, the defendant's solicitors appeared, and filed a objection as follows:

'The undersigned, solicitors of defendant in the above-entitled suit, respectfully represent to the court that they are not authorized to accept service of process or other papers in criminal contempt proceedings against the defendant, or to waive any rights which the defendant may have had in such proceedings, and object that the complainant has not duly served its motion for attachment in the pending proceeding upon the defendant, and that the court has no jurisdiction to entertain the pending proceeding because, among other reasons, the defendant has not been brought into court.'

The affidavits used upon the hearing contained a recital of the previous proceedings and copies of the moving and answering affidavits used thereon, besides additional affidavits setting forth the facts in regard to the further infringement, and to the service of the motion for an attachment, which have been referred to. In deciding the motion, the court in its opinion, among other things, said:

'This is the second violation of the same injunction, and defendant does not offer even the excuse of inadvertency which it presented before.'

The assignments of error in each of the proceedings assert that the court erred in deciding that the injunction was duly served on the defendant, in deciding that the defendant had infringed the injunction, in deciding that proper notice to the defendant of the motion for attachment had been given, and assert that the court imposed an excessive fine. Various other errors were assigned, but, as they have not been argued, it is unnecessary to refer to them.

The service of a copy of an injunction upon the solicitors for the defendant in an equity suit ordinarily affords sufficient notice to the defendant, and should be deemed equivalent to actual notice to the defendant of the contents. It is the duty of the solicitor promptly to inform his client of the contents of the document, and the presumption is that he has done so. If it should appear that he has not done so, the court would doubtless acquit the defendant of any intentional misconduct in a proceeding to punish him for violating the order. In this case there was the additional presumption that a letter properly addressed and mailed reached its destination at the proper time and was duly received by the person to whom it was addressed. This is a presumption of fact resting upon the consideration that the post office is a public agent charged with the duty of transmitting letters, and that what ordinarily results from the transmission of a letter through the post office probably resulted in the given case; it is deduced from the known course of business, and the presumption that the officers of the postal system have discharged their duty. Rosenthal v. Walker, 111 U.S. 185, 4 Sup.Ct. 382, 28 L.Ed. 395; Kimberly v. Arms, 129 U.S. 512, 9 Sup.Ct. 355, 32 L.Ed. 764; Henderson v. Carbondale Coal & Coke Co., 140 U.S. 26, 11 Sup.Ct. 691, 35 L.Ed. 332; Schutz v. Jordan, 141 U.S. 213, 11 Sup.Ct. 906, 35 L.Ed. 705. According to the modern practice, actual service of an injunction upon the person sought to be restrained is not requisite to lay the foundation of a proceeding against him for contempt. The authorities are collected in Rapalje on Contempt, Sec. 46, where the author, after referring to some conflict in the cases, uses this language:

'The weight of authority, however, and in our judgment the better opinion, is that a defendant against whom an injunction is issued, who has actual notice thereof, will be bound thereby, although the same is not served upon him.'

In re Lennon, 166 U.S. 548, 554, 17 Sup.Ct. 658, 41 L.Ed. 1110, the court said:

'To render a person amenable to an injunction, it is neither necessary that he should have been a party to the suit in which the injunction was issued, nor to have been actually served with a copy of it, so long as he appears to have had actual notice.'

In deciding that the defendant had violated the injunction, the court necessarily passed upon the questions whether the defendant had sold the valves, and whether the valves were an infringement of the complainant's patent. Upon writ of error the court cannot review questions of fact. Its review is confined to questions of law only. This is the rule when contempt proceedings are...