Dempsey v. Dobson

• Decision Date: 02 March 1896
• Docket Number: 202
• Parties: John W. Dempsey v. John Dobson and James Dobson, trading as John & James Dobson, Appellants
• Court: Pennsylvania Supreme Court

34 A. 459

174 Pa. 122

John W. Dempsey v. John Dobson and James Dobson, trading as John & James Dobson, Appellants

No. 202

Supreme Court of Pennsylvania

March 2, 1896

Argued January 27, 1896

Appeal, No. 202, July T., 1895, by defendants, from judgment of C.P. No. 1, Phila. Co., Dec. T., 1892, No. 829, on verdict for plaintiff. Reversed.

Trespass for an alleged wrongful taking of color books. Before BIDDLE J.

The facts appear by the charge of the court and by the opinion of the Supreme Court.

At the trial the court admitted under objection and exception the following letter:

"PHILADELPHIA Sept. 26, 1892.

"MESSRS JOHN & JAMES DOBSON.

"Gentlemen: On the 30th day of August your employees with the assistance of a policeman forcibly took from me books that were my private property, Mr. Watson, your special officer at the mill, stating that he took them by orders from Mr. James Dobson.

"In reply to a message sent you while detained against my will in the custody of your officer at the mill, you sent word that I should have the books in the morning if they belonged to me. My protests against this were unheeded.

"In a letter to me dated September 1st, you stated that you are having the books copied and that when finished, which would be in a few days, you would send them to my house. My objections to your possessing yourselves of my secrets and information availed nothing as up to yesterday you failed to return the books to me, which I have no reason to doubt you had copied as you stated you would.

"The books contain valuable trade secrets and information gained by me in a long course of years and are essential to me in the prosecution of my trade. While of great value to you in your business, you have no right to them nor in them whatever, as they are absolutely and unqualifiedly and unquestionably my private property, and you know it. I now demand that you surrender to me such copies as you have made of them or have caused others to make of them for you. At the same time I wish you to send to me the shade book which you neglected to return to me as promised.

"Respectfully,

JOHN W. DEMPSEY." (1)

The court charged as follows:

The complaint of the plaintiff in this case is that he at one time and for many years had been in the employ of Messrs. John & James Dobson, that for reasons of his own he gave notice that at a certain time he was about to leave their employment; that he had in his possession a certain number of books which are called color books, apparently, and another book which you see before you called the shade book, and the contents of those books were his private property; they did not belong to the defendants, John and James Dobson; [that he had himself paid for the books; the entries there had been made by him, and a great number of them, one thousand eight hundred out of about two thousand three hundred, had been brought from England] and a number of them had been of his own invention, and that he had been in the habit of taking these books every night to his home and bringing them back in the morning.

He complains that on a certain evening he, by direction of Mr. Dobson, was prevented from taking these books to his home, and in that time he put these books in a paper, sealed them up and left them there, and then, although unwillingly, went to his own home; the next day, however, these papers were opened by Mr. Dobson, and were given to a person to make copies of their contents for Mr. Dobson. -- This requiring considerable time, I think about twenty-seven days or something of that sort, and at the end of the time the books were sent back to Mr. Dempsey. [For this he claims these damages at your hands. There is no doubt that this would constitute what the law calls a trespass, for which this suit is brought. The law does not regard the value of the thing, but the propriety and legality of the act.] No matter how comparatively valueless these books were, if they belonged to the plaintiff, Mr. Dobson had no right to take and no right to keep them, and, if that was done without his consent, it would justify the plaintiff bringing suit.

[The answer of the defendants as to that part of the case is that these books did not belong in any proper sense to the plaintiff in this case; that undoubtedly he had them in his possession; that undoubtedly he made these entries in them, but that he was in the employ of the defendants at a salary which was entirely satisfactory to himself, whether large or small, I do not know. Mr. Dobson said he knew these books were being used, or supposed they were being used, for his business, and though they were purchased out of the plaintiff's money entirely unknown to him, he supposed that, like the other books in his establishment, they were paid for by him, and that after he received this notice of the plaintiff's intention to leave him his attention was called to a change taking place in regard to the removal of the labels which were on the pitchers used in Mr. Dobson's factory.]

It seems that each one of these pitchers had a certain formula and number pasted to the neck of it, the pitcher being here yesterday and you saw exactly what it was. He said he found the numbers were not being removed, but that the labels which gave the formula were being taken off. Supposing this was some attempt to interfere with the workings of the establishment, he directed that the books, which he supposed were his own, should not be allowed to leave the premises, and in that way he justifies himself for having done what he did in this case.

[That is the first question for you to decide. Of course, if they were not the plaintiff's books, but were the books of the firm, the plaintiff had no right at all to remove them, and therefore there would be no case whatever against the defendants. If, however, you take the other view of the case, that those were his books, even if they were not of the slightest value, he had a right to take them and to keep them.]

[The next question for you to consider will be the question of damages which are claimed in this case. As I have just said to you, the law does not judge by value, but judges by intention. For example, if you shake your fist near enough to a man's face it is called an assault, and if you slap him on the back it is called a battery, and if you did that you would be guilty of assault and battery. If you were sued for damages for that, of course you would not give as much as if the man had been knocked down and trampled upon. Therefore in all these cases of trespass you must consider what injury the man has really sustained, and although you may say the law or the man's right ought to be vindicated, the question of the amount of damages for that would be of course a different question.]

There has been in this case no evidence whatever of the value of these formulae; not of the market value, because it would probably be very difficult to show what that was, but there has been no attempt to show that any one of those 2300 formulae was not known to the trade; there has been no attempt to show that any one of them would produce colors which could not be regularly produced in various ways.

Of course we can all understand that if you have a recipe or formula which will produce colors that no man in the country can produce you undoubtedly have a fortune, and if anybody were to take that away from you and use it you would be entitled to very high damages. Of this there is no doubt. But if that formula which you had was of very slight value, and could be found in all the books which anybody in the trade could consult on the subject, it would be a subject of very much less damages than if it were of the character I have described. [In the argument of counsel was put the case of a man having a scrap-book in which he had copied things from the Public Ledger. If that were taken away from him improperly it would inconvenience him very much not to have these recipes that he copied from the Ledger, and he might claim damages on that account; but if he could show that those recipes were unknown in the world and would produce an effect which nobody else could produce, that of course would very much increase the damages.

So if a man comes and asks a very large amount of damages, those are questions of law which are proper for your consideration. A man who has received a very slight injury ought not to receive large damages.] Of course, in this case, the books were returned.

This is all I have to say to you.

Verdict for plaintiff for $10,000 upon which judgment was entered for $5,000, a remittitur having been filed for all in excess of $5,000.

Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2-7) various portions of charge; (10) the charge as a whole, quoting it.

The judgment is reversed for the reasons now given and a venire facias de novo awarded.

Richard P. White, for appellants. -- It was error to admit plaintiff's letter: Bush v. Ferry, 7 Phila. 195; Richards v. Franklin, 9 C. & P. 221; Holler v. Wiener, 15 Pa. 242; Fraley v. Bispham, 10 Pa. 320; Allen v. Peters, 4 Phila. 78; Fearing v. Kimball, 4 Allen, 125; Robeson v. Fitchburg, 7 Gray, 92; St. Louis, Alton etc. R.R. v. Thomas, 85 Ill. 464.

One who uses a book in his employer's business dedicates it to his service and loses his own right to its possession: Makepiece v. Jackson, 4 Taunton, 770; Wood on Master and Servant, 2d ed. 202.

Even where an employee uses a patented invention of his own in his employer's business he cannot, when he leaves the employment, deprive the master of its use. The law implies a license to use the invention until the patent expires Herman v. Herman, 29 F. 92; Jenks v. Langdon Mills, 27 F. 622; Barry v. Crane, 22 F....