Standard Water Systems Co. v. Griscom-Russell Co.
| Decision Date | 02 February 1922 |
| Docket Number | 2689. |
| Citation | 278 F. 703 |
| Parties | STANDARD WATER SYSTEMS CO. et al. v. GRISCOM-RUSSELL CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Victor D. Borst, William M. Stockbridge, and Herman J. Westwood, all of New York City, for appellants.
W. B Morton and William H. Davis, both of New York City, for appellee.
Before WOOLLEY and DAVIS, Circuit Judges, and ORR, District Judge.
The Griscom-Russell Company, by its bill, charges the Standard Water Systems Company and three individuals with infringement of United States patent No. 1,131,738, issued to Reuben R Row, under date of March 16, 1915, for an evaporator. It sets forth that the apparatus of the patent was the invention of one of the defendants, who assigned the same to the Griscom-Russell Company. It charges that the said inventor and the other individual defendants, all three having been in the employ of the Griscom-Russell Company, left such employment and associated themselves with the Standard Company, with the purpose and intent to injure the Griscom Company, by appropriating to themselves and the Standard Company valuable data, engineering designs, drawings, etc which were the property of the Griscom Company, and that they all conspired together to infringe the letters patent above referred to. Such is a brief memorandum of the charging parts of the bill. The bill does not waive an answer under oath. All of the defendants answered; the three individual defendants joining in an answer verified under their oath. The corporation defendant filed a separate answer. The case was so proceeded with in the court below that a decree was entered adjudging that the letters patent were good and valid in law; that the Griscom Company was the lawful owner; that the defendants had jointly infringed the letters patent, specifically claim 8 thereof; that the plaintiff recover profits, gains, and advantages; and that an account be stated. The court, however, did not issue an injunction against the individual defendants, but against the Standard Water Systems Company only. The individual defendants have appealed from the decree of the court.
We have noted that the individual defendants had filed answers under oath. It is to be observed, also, that two of them, Row and Thompson, were called as witnesses by the plaintiff. By calling them as witnesses, the plaintiff asserts that they are credible persons, and is estopped from impeaching their credibility; yet the plaintiff is not prevented from showing that they are mistaken. The testimony of these two parties called by the plaintiff is explicit in denial of the main charging parts of the bill. Nowhere else in the record there is found any direct testimony of any federation between the individual defendants for the purpose of injuring the plaintiff, as charged in the bill. At most, there are only circumstances and peculiar facts which might perhaps arouse in the plaintiff a suspicion, but such evidence is not sufficient to overcome the positive denial of the defendants, found in their answer, and found, also, in their testimony as witnesses called by the plaintiff.
The cases bearing upon a situation of this kind are rather difficult to find. Of course, there is the case of Dravo v. Fabel, 132 U.S. 487, 10 Sup.Ct. 170, 33 L.Ed. 421, holding that, when the plaintiff in a suit in equity does not waive an answer under oath, the defendant's answer directly responsive to the bill is evidence in his favor, and further that the party offering, in a court of the United States, a deposition taken under the Pennsylvania statute, which provides for the examination of the opposite party as if under cross-examination, makes the witness his own, and is not at liberty to contend that he is not entitled to credit.
There is a case somewhat analogous to the case at bar, so far as the calling of a defendant as a witness for a plaintiff is concerned, to be found in Coonrod v. Kelly (in this Circuit) 119 F. 841, 56 C.C.A. 353. There the bill did not waive answer under oath by the defendants, and the answers to the bill and to the interrogatories therein propounded were responsive, and were in general tenor and effect the same as testimony given by two of the defendants when called by the complainant. As Judge Gray puts it (119 Fed.at the bottom of page 846, 56 C.C.A. 358), alluding to the testimony of the defendants who had been called by the plaintiff:
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