Pathe Exchange v. Dalke, 3079-3082.

• Decision Date: 13 April 1931
• Docket Number: No. 3079-3082.,3079-3082.
• Citation: 49 F.2d 161
• Parties: PATHE EXCHANGE, Inc., v. DALKE. UNIVERSAL FILM EXCHANGES, Inc., v. SAME. FIRST NAT. PICTURES, Inc., v. SAME. FOX FILM CORPORATION v. SAME.
• Court: U.S. Court of Appeals — Fourth Circuit

49 F.2d 161 (1931)

PATHE EXCHANGE, Inc., v. DALKE.

UNIVERSAL FILM EXCHANGES, Inc., v. SAME.

FIRST NAT. PICTURES, Inc., v. SAME.

FOX FILM CORPORATION v. SAME.

Nos. 3079-3082.

Circuit Court of Appeals, Fourth Circuit.

April 13, 1931.

Frank F. Nesbit, of Washington, D. C. (George N. Conrad and George D. Conrad, both of Harrisonburg, Va., on the brief), for appellants.

F. S. Tavenner, of Woodstock, Va. (F. S. Tavenner, Jr., of Woodstock, Va., on the brief), for appellee.

Before PARKER and NORTHCOTT, Circuit Judges, and GLENN, District Judge.

NORTHCOTT, Circuit Judge.

These are suits in equity brought in the District Court of the United States for the Western District of Virginia, at Harrisonburg, by appellants against appellee, herein referred to as defendant. The bills alleged that the defendant entered into a written contract with the plaintiffs for the exhibition of their moving picture films, which were copyrighted under the laws of the United States, and that defendant in violation of the terms of the contract and in violation of the copyright laws of the United States, exhibited for profit such motion pictures without the authority or license of the plaintiffs, owners of said copyrights, to do so, and that the defendant profited greatly by such wrongful action. The bills prayed for the recovery of the profits derived from the alleged infringing acts and the damages sustained by the complainants pursuant to the provisions of the copyright law. The bills prayed for an accounting by the defendant as to the amount of profit made by him in the alleged wrongful exhibitions of said motion pictures.

Motion was made by defendant to dismiss the bills on the ground that they were wanting in equity, and that there existed a full, complete and adequate remedy at law, and later, under the motion, the question was raised that the action was barred by the statute of limitations. The learned judge below in an opinion filed with the record held that under the Virginia statute the suit was barred by the statute of limitations. Plaintiffs then tendered an amended bill, and on objection by the defendant, the court below refused to permit the filing of the amended bill, from which action of the court in holding that the statute of limitations, applicable to the suits, was one year, and in refusing to permit the filing of the amended bill, these appeals were brought.

The United States statute, providing for penalties for infringement of a copyright, is found in title 17, section 25, of the USCA, and permits recovery in certain sums for such infringement as damages.

The Virginia statute of limitations, in point, is found in section 5818 of the Code of Virginia for 1919, and is as follows: "Every personal action, for which no limitation is otherwise prescribed, shall be brought within five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that in case a party die it can be brought by or against his representative; and, if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued."

From the reading of this section it will be seen that the question to be determined is whether or not the suit, in case of a death of a party, could be brought by or against his representative. If such be the case, the limitation is five years, but if such be not the case, then the limitation is one year.

This cause, if properly an equity case, falls under the concurrent jurisdiction of a court of equity, and this court is here bound to follow the applicable Virginia statute of limitations. In 1 Story's Eq. Jurisp. (6th Ed.) § 529, it is said, speaking of suits for an accounting: "In cases of this sort, where the demand is strictly of a legal nature, or might be cognizable at law, courts of equity govern themselves by the same limitations as to entertaining such suits, as are prescribed by the statutes of limitations in regard to suits in courts of common law in matters of account. * * * In so doing, they do not act, in cases of this sort (that is, in matters of concurrent jurisdiction), so much upon the ground of analogy to the statute of limitations, as positively in obedience to such statute."

See, also, 21 Corpus Juris, p. 254, note 85; 3 Cyc. Fed. Proc. § 684, p. 170; Rose, Fed. Juris. (3d Ed.) § 525; McCaleb v. Fox Film Corp. (C. C. A.) 299 F. 48. In the notes to the foregoing texts are numerous cases holding that the statute of limitations of the state in which the suit is pending governs.

The judge below seemed in doubt as to what the common law of Virginia was in respect to the survivability of a cause of action where the plaintiff seeks to recover profits gained by the defendant, by means of a wrongful act such as is here charged; but we have reached the conclusion, after an examination of the authorities, that in such case even at common law, the suit did survive. It was early recognized in England that it was contrary to the principles of justice that where by means of a tort during the lifetime of either of the parties the plaintiff's estate had been diminished or his property taken or carried away, or by means of a tort the defendant's estate had been increased or added to, the executors or administrators should not be allowed to assert or not be required to answer such claim. To remedy this obvious injustice the Statute of 4 Edward III, de Bonis Asportatis in Vita Testotoris, was passed in 1330. Hambly v. Trott, Cowper, 376, 98 Engl. Repr. 1136; Berwich v. Andrews, 2 Ld. Raym. 973; Lansdowne v. Lansdowne, 1 Maddock, 116, 56 Engl. Repr. 44.

As a convenient restatement of the distinction and as a test for distinguishing the class of torts which survived at common law from the other, Lord Mansfield in Hambly v. Trott, Cowp. 371, 376, 98 Engl. Repr. 1136 (decided in 1776), laid it down that, if the tort was one which benefits the offender in some way, it survived, but if it merely injured the sufferer without benefiting the property or estate of the wrongdoer, it was a merely personal tort which would not survive. He said: "Here therefore is a fundamental distinction. If it is a sort of injury by which the offender acquires no gain to himself at the expense of the sufferer as beating or imprisoning a man, etc., there the person injured has only a reparation for the delictum in damages to be assessed by a jury. But, where, besides the crime, property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor. As, for instance, the executor shall not be chargeable for the injury done by his testator in cutting down another man's trees, but for the benefit arising to his testator for the value or sale of the trees he shall. So far as the tort itself goes, an executor shall not be liable; and therefore it is that all public and all private crimes die with the offender, and the executor is not chargeable; but, so far as the act of the offender is beneficial, his assets ought to be answerable, and his executor therefore shall be charged."

At the time of the separation of the colonies from the mother country such an action survived the death of a party.

In Patton v. Brady, 184 U. S. 608, 614, 22 S. Ct. 493, 495, 46 L. Ed. 713, it was said: "If we turn to the common law, there the rule was that if a party increased his...