General Elec. Co. v. McLaren

• Decision Date: 16 October 1905
• Citation: General Elec. Co. v. McLaren, 140 F. 876 (D. N.J. 1905)
• Parties: GENERAL ELECTRIC CO. v. McLAREN.
• Court: U.S. District Court — District of New Jersey

140 F. 876

GENERAL ELECTRIC CO. v. McLAREN.

United States Circuit Court, D. New Jersey.

October 16, 1905

Richard N. Dyer (John Robert Taylor, of counsel), for complainant.

W. M Brown, for defendant.

CROSS District Judge.

Upon application of the complainant on ex parte affidavits, this court allowed a rule to show cause why the defendant should not be adjudged guilty of contempt of court for violation of an injunction prohibiting him from making lamps or practicing the process of letters patent No. 726,293 in exhausting lamps, or from in any way further infringing upon said letters patent. The injunction was served on the defendant on the 13th day of January, 1905, and was issued pursuant to the final decree of this court in said cause, made in the month of January aforesaid; a decree pro confesso having been entered in said cause on the 10th day of December, 1904. The moving papers consist of the affidavits of Albert R. Page Mary Kenny, and Arthur E. Little, and the depositions of the defendant and Bertha Sincock were at one time employes of the defendant for longer or shorter periods. The witness Sincock was in the employ of the defendant for only a part of a day some time in the summer of 1904. Page, after working for the defendant for nearly six months, left his employ either on the day the injunction was served or the day after. He swears it was the day after. Four witnesses for the defendant, however, say that it was the same day. He testifies that changes were made in the apparatus of the defendant the very day that the injunction was served, and that these changes were made, as he understood, 'simply as an attempt on the part of the defendant to obtain the benefits of exhausting lamps through the use of the complainant's process, and evading, if possible, the injunction served upon him. ' This was the statement of his primary affidavit. In his affidavit of rebuttal he says:

'Possibly this change (in the apparatus) was not made for the purpose of avoiding or in the attempt to evade the effect of the injunction, but that was the understanding I obtained at the time the change was made.'

At the best it was only the understanding of the witness, and does not appear to have been based upon any statement of the defendant, or of any one authorized to speak for him. If the changes were in fact made, and for the purpose indicated by the witness, it is not easy to discover why he was discharged the next day, because, as he says, the defendant, 'in view of the injunction, had decided to close down his factory.'

Under the circumstances, I am constrained to find that Page left the defendant's employ on the day when the injunction was served, since four witnesses are certainly less likely to be mistaken than one. Mary Kenny, who has also furnished an affidavit for the complainant, states that she entered the employ of the defendant on February 27, 1905, and left it on the 20th day of March, succeeding. At the time she entered his service, she was an employe of the complainant, and was induced by the complainant to enter the defendant's service for the purpose of ascertaining the method adopted and used by him in exhausting lamps. She does not state how many lamps she exhausted, but she says that lamps to the extent of between 250 and 300 per day were exhausted each working day by the defendant, and that exhausting lamps was the main work she did. All of the witnesses of the defendant say that she was unfamiliar with the defendant's process; and two of the witnesses swear that she personally admitted to them that she did not know how to and could not exhaust a lamp by the defendant's process.

The only other witness for the complainant is Arthur D. Little an expert who, assuming that the affidavits of Page, Kenny, and Sincock set forth the process of exhausting lamps used by the defendant, says that the process so described is covered by the complainant's patent in suit, and that the...