Turrill v. Illinois Cent. R. Co.

• Decision Date: 06 February 1880
• Citation: 20 F. 912
• Court: U.S. District Court — Northern District of Illinois
• Parties: TURRILL v. ILLINOIS CENT. R. CO. SAME v. MICHIGAN S. & N.I.R. CO.

20 F. 912

TURRILL v. ILLINOIS CENT. R. CO.

SAME v. MICHIGAN S. & N.I.R. CO.

United States Circuit Court, N.D. Illinois.

February 6, 1880

F. H Kales and West & Bond, for complainant.

George Payson and J. N. Jewett, for defendants.

HARLAN Justice.

Looking into the records of these cases as they were presented to the supreme court of the United States in 1876, (94 U.S. 696,) I find that decrees were rendered against the Chicago & Alton Railroad Company, the Chicago, Burlington & Quincy Railroad Company, the Pittsburgh, Fort Wayne & Chicago Railroad Company, the Michigan Southern & Northern Indiana Railroad Company, and the Illinois Central Railroad Company, for the infringement of the Cawood patent. As to the three companies first named, the decrees were affirmed upon the ground that the machines used by them were infringements of that patent. The decrees against the Michigan Southern and Illinois Central were reversed, because the sums adjudged against them improperly included profits made from the use of certain other machines which were declared by the supreme court to be non-infringing, to-wit, the 'Bayonet Vice,' the 'Michigan Southern,' and the 'Beebe & Smith' machines. To that extent the decrees against those companies were held to be erroneous, and the causes were remanded, with directions for further proceedings in conformity with the opinion of the court. They were again referred to the master, with directions-- upon the testimony on file, if sufficient; if not, upon additional testimony-- to ascertain the amount to be deducted for the work done by the 'Beebe & Smith,' the 'Bayonet Vise,' and the 'Michigan Southern' machines. To his report numerous exceptions have been filed by the defendants.

Upon the last hearing before the master, proof was made tending to show that, during the period covered by the accounting, the Michigan Southern & Northern Indiana Railroad Company had a license to use the Beebe & Smith machine, with which, it is claimed, the company could achieve the same results at less cost than was incurred in the use of the Cawood machines. The company, it is contended, saved nothing by using the Cawood machines, and made, in fact, no profits therefrom. These propositions strike at the foundation upon which plaintiff's whole cause of action rests, and must be first examined.

I doubt very much whether the question thus raised is open for consideration. The former decree embraced profits made by the company in the use of the several machines, in addition to the Cawood, which were held by the circuit court to have been infringing machines. The supreme court affirmed the decision against the two companies, now before me, as in all respects correct, except to the extent that it included in the recovery profits arising from the three non-infringing machines. There is, consequently, fair ground to contend that the only inquiry now open is, what part of the original sum found against the defendants represents, upon the standard of comparison heretofore adopted, the profits arising from the non-infringing machines? The standard of comparison now insisted upon involves the recasting of the whole account including that portion representing the profits alleged to have been made by the use of the Cawood machine.

But waiving any determination of the question as to my right to open the case, or to direct the accounting to be had upon a standard of comparison different from that adopted upon the original hearing. I am of the opinion that in estimating the profits made by the company from the use of the Cawood machine, we must compare that device with what was known and open to the public at and before the date of the Cawood patent. The Beebe & Smith invention was subsequent to the Cawood. The company had the right to use the former during the period of accounting, and take to itself all savings or profits derived from its use. But it had no right to use the Cawood machine, and enjoy the savings derived from such use simply because it...