General Motors Co. v. Swan Carburetor Co., 5190.
| Decision Date | 05 November 1930 |
| Docket Number | No. 5190.,5190. |
| Citation | 44 F.2d 24 |
| Parties | GENERAL MOTORS CO. v. SWAN CARBURETOR CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
J. L. Stackpole, of Boston, Mass. (Frederick P. Fish and H. L. Kirkpatrick, both of Boston, Mass., and White, Cannon & Spieth, of Cleveland, Ohio, on the brief), for appellant.
F. O. Richey, of Cleveland, Ohio (J. H. Milans, of Washington, D. C., and D. E. Morgan, Henderson, Quail, McGraw & Morgan, and Richey & Watts, all of Cleveland, Ohio, Milans & Milans, of Washington, D. C., on the brief), for appellee.
Before DENISON, HICKS, and HICKENLOOPER, Circuit Judges.
The Swan Company, plaintiff below, was the licensor and the General Motors Company the licensee, in a patent license contract relating to an automobile intake manifold. To recover royalties thereunder, the Swan Company brought this suit in the state court; it was removed to the court below, and plainly belonged, as it was considered to be, upon the law side of the court. A jury was waived in writing; a trial was had, and testimony taken before the court; without any request for findings filed by either party, but in purported compliance with a request by defendant (probably oral), the court made fifteen findings which it denominated "special findings of fact from the evidence"; and entered judgment for the plaintiff.
This appeal by defendant is met by plaintiff's claim that no question has been properly saved for review. Looking into the record and briefs to ascertain what the real controversy is, we find it concerns one question only, Is a manifold which has round conduit pipes and a domed mixing chamber within the mechanical construction as to which the duty to pay license fees arose, or is that duty confined to structures having square tubes and a flat roofed chamber? This inquiry obviously is composite and includes (a) what is the scope of the underlying patent claim; and (b), the scope being determined, did this structure infringe? This composite question is, and each of its elements is, or at least may be, a mixed question of law and fact. Upon such an issue, specific questions of law may sometimes be found to be involved and may be segregated, and doubtless sometimes the complete answer should be drawn as an inference of law resting upon undisputed facts.
Under the well-settled practice which we are very often being called upon to apply, we cannot review a finding of fact to see whether it is based on any substantial evidence; nor can we examine any question of law, unless the point was distinctly presented to the court below and ruled upon, during the progress of the trial, and unless proper exception was then taken. City of Cleveland v. Walsh (C. C. A.) 279 F. 57; Fleischmann Const. Co. v. U. S., 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624; Law v. U. S., 266 U. S. 494, 45 S. Ct. 175, 69 L. Ed. 401. If there were any specific questions of fact upon which defendant desired findings, it should have presented them to the court below; if it claimed that any specific finding of fact was not supported by any substantial evidence, it should have excepted specifically upon that ground; a general exception to a finding of fact is meaningless. The claim that the findings do not support the judgment is, of course, open on such an appeal; but that cannot avail defendant here. It is found as a fact that the structures in dispute were covered by the contract between the parties, and, as a finding of fact, this is about all that could be said in order to support a judgment for an agreed royalty. Defendant presents the case very much as if it were an equity appeal, but, when the argument is reduced to terms permissible in a law appeal, it comes to saying that, upon the undisputed facts, the court was required as a matter of law to find no liability; but this position cannot be considered by a reviewing court, unless the defendant has upon the trial proceeded by analogy to a motion for a directed verdict. If made at any time before the trial is finished — and perhaps a trial for this purpose continues until the court announces its conclusion — a request for a conclusion as a matter of law that there is no evidence to support a judgment would be sufficient to preserve this quesion for our consideration; but no such request was made, and the matter is not open here. Oyler v. Cleveland, C., C. & St. L. R. Co. (C. C. A. 6) 16 F.(2d) 455; May v. Marbury (C. C. A. 6 — Apr. 7, 1930) 39 F.(2d) 438, and cases cited.
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