Electro-Bleaching Gas Co. v. Paradon Engineering Co.

• Decision Date: 30 October 1926
• Docket Number: No. 1929.,1929.
• Citation: Electro-Bleaching Gas Co. v. Paradon Engineering Co., 15 F.2d 854 (E.D. N.Y. 1926)
• Parties: ELECTRO-BLEACHING GAS CO. et al. v. PARADON ENGINEERING CO., Inc.
• Court: U.S. District Court — Eastern District of New York

15 F.2d 854 (1926)

ELECTRO-BLEACHING GAS CO. et al. v. PARADON ENGINEERING CO., Inc.

No. 1929.

District Court, E. D. New York.

October 30, 1926.

Wood, Molloy & France, of New York City, for plaintiffs.

Mayer, Warfield & Watson, of New York City, for defendant.

CAMPBELL, District Judge.

This case comes before the court on a motion to punish the defendant for contempt. The order to show cause was granted July 9, 1926; the motion was argued August 25, 1926, and finally submitted October 15, 1926.

The plaintiffs seek to have the defendant and its officers adjudged in contempt of court for alleged violation of the terms of the interlocutory decree granted herein, and the injunction issued thereon, in selling apparatus for use in the United States of America, to wit, for the use of the city of Seattle, Wash., on Lake Washington, in practicing the process described in claims 4, 5, 6, 8, and 10 of letters patent of the United States No. 1,142,361. That patent was held valid and infringed by the defendant, claims 4, 5, 6, 8, and 10 being the claims sued on, and the decree of this court was affirmed by the Circuit Court of Appeals, and its mandate was issued on May 11, 1926. 12 F.(2d) 511.

The injunction was issued December 9, 1925, and its operation was stayed pending the appeal; but this court issued an order on June 17, 1926, which was served June 18, 1926, reinstating the injunction. On June 19, 1926, the city of Seattle advertised for bids for "two chloro-boats equipped with chlorinating apparatus, in accordance with specifications now on file." The specifications called for "two chloro-boats completely equipped with vacuum solution type chlorinating apparatus."

The Pacific Waterworks Supply Company submitted a bid June 24, 1926, to furnish the boats in accordance with the specifications. If this motion had been finally submitted by the plaintiffs solely on the papers on which the order to show cause was granted, I do not think any consideration of the merits would be necessary, because in my opinion the facts stated therein were not sufficient to warrant my finding the defendant, or its officers, in contempt. Supplemental affidavits, however, in support of the motion, have been filed, and defendant has answered them.

Defendant urges that the motion must be denied, because plaintiff failed to specify whether the relief sought was to be punitive and vindicatory, or merely compensatory to the plaintiffs. I cannot agree with defendant's contention.

It is well settled that there is a distinction between civil and criminal contempts, one criminal to punish disobedience, and the other remedial and civil to enforce a decree of the court and to compensate a private person. In re Christensen Engineering Co., 194 U. S. 458, 24 S. Ct. 729, 48 L. Ed. 1072. It is not, however, error in patent causes to combine the two, and embrace the public and private remedy in one proceeding; but the defendant must not be left in any doubt that it is called upon to face a criminal charge. Kreplik v. Couch Patents Co., 190 F. 565, 111 C. C. A. 381.

While form is not of major importance, a punishment for a criminal contempt should be entitled other than in the action on the patent, and the fact that the present motion is made on an order to show cause, which is entitled in the action, would, in the absence of specific demand that defendant and its officers be adjudged guilty of a criminal contempt, indicate that the plaintiffs are seeking to have the defendant and its officers adjudged guilty of a civil contempt. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.

The plaintiffs must establish the law and the facts relied on to make out the alleged contempt; but, as this is a proceeding to have the defendant adjudged guilty of a civil contempt, I am not prepared to say that the plaintiffs must establish their case beyond all reasonable doubt. Gompers v. Buck's Stove & Range Co., supra, at page 444 (31 S. Ct. 492). But the burden is heavy on the plaintiffs, and where there is reasonable ground to doubt as to the wrongfulness of the conduct of the defendant, it should not be adjudged in contempt. California Artificial Stone Paving Co. v. Molitor, 113 U. S. 609, 5 S. Ct. 618, 28 L. Ed. 1106; Hanley v. Pacific Live Stock Co., 234 F. 522, 148 C. C. A. 288; General Electric Co. v. McLaren (C. C.) 140 F. 876.

Plaintiffs claim that the Pacific Waterworks Supply Company was the agent of the defendant, but this does not appear to me to be sustained by the evidence in the form of affidavits, which have been furnished on behalf of the plaintiffs. By the supplemental affidavits, furnished on behalf of the plaintiffs, it is also attempted to show that the defendant and its officers have also violated the injunction in selling apparatus to...