Culmer v. Canby

• Decision Date: 08 May 1900
• Docket Number: 768.
• Parties: CULMER v. CANBY et al.
• Court: U.S. Court of Appeals — Sixth Circuit

101 F. 195

CULMER v. CANBY et al.

No. 768.

United States Court of Appeals, Sixth Circuit.

May 8, 1900

William C. Herron, for plaintiff in error.

Before LURTON and DAY, Circuit Judges, and CLARK, District Judge.

DAY Circuit Judge.

This case presents a single question, namely, the correctness of the ruling of the court below upon a general demurrer to the petition undertaking to recover for an alleged libel. The petition is quite voluminous,-- more so than is required under the Ohio practice which prevails on the law side of the federal courts. Under section 5093, Rev. St. Ohio, it is sufficient to state in an action for libel that the defamatory matter was published of the plaintiff. In the petition a part of the alleged libel is set up, with accompanying innuendoes, and a copy in full of the alleged libelous matter is attached as an exhibit to the petition. After the demurrer was filed but before it was passed upon, it was stipulated that the entire article should be regarded as a part of the petition. In view of this stipulation, we regard the petition as counting upon an alleged libel published of and concerning plaintiff, as set forth in said publication; and the question presented is, should a general demurrer to the petition be sustained? The alleged libel is as follows:

'Important Lawsuits.

'Suit was filed in the United States court at Pittsburg, Pa., on August 6th, by the undersigned, the Computing Scale Company of Dayton, Ohio, against the Keystone Store-Service Company of Beaver Falls, Pa., for infringing computing scale patents owned or controlled by the Dayton company. As the peculiarities of this case, making it one of unusual importance, a short history of the matter may not be amiss: Early in the year 1891 John W. Culmer, now at the head of the Keystone Store-Service Company, as general manager, sold to the Dayton company certain patents on a computing scale wholly different from anything in that line that is now made; making certain representations, which the Dayton company now claim to be fraudulent. At the time, the Dayton company employed this Jno. W. Culmer, as an inventor, to take charge of its experimental department and other matters in its factory. On account of the above alleged fraudulent representations, and the inability of the said John W. Culmer to perform certain things claimed by him, the Dayton company filed suit March last against the said Jno. W. Culmer and others associated with him for $10,000 damages on account of such alleged fraudulent representations. Furthermore, after a little more than a year's service, the Dayton company dispensed with the services of the said Culmer, about which time the said John W. Culmer carried from the office of the Dayton company certain drawings of a computing scale practically the same as the scale now made by the Keystone Store-Service Company, and for the manufacture of which suit was brought on the 6th inst. for infringement. In view of the above facts the Dayton company claims ownership in and to the scale made by the Keystone Store-Service Company, and, as heretofore stated, will protect its interests by asking the courts to compel the said Jno. W. Culmer and the Keystone Store-Service Company to assign all of their right and title to such patent or patents when issued.

'The Computing Scale Company, O. O. Ozias, Gen. Manager.

'Dayton, Ohio, August 12, 1895.

'P.S. To merchants and dealers using scales this case is of extreme importance, as the courts have held that all persons using infringing machines are liable for damages.'

It is unnecessary to determine whether the innuendoes undertaking to set forth the meaning of a part of the publication are justified by the terms of the publication itself. An innuendo can neither enlarge nor restrict the meaning of words beyond their ordinary or usual signification, and upon general demurrer the question is not whether the alleged libel will bear...